Adultery Not An Obstacle For Granting Custody To Mother Of Minor Child: Punjab & Haryana High Court

The Punjab & Haryana High Court has said that a mother entering into adultery is not an obstacle for her to receive custody of a minor child as she is still capable of giving motherly love to her children.

The Court directed the husband to restore the custody of the wife's two minor children during the pendency of the plea while remanding the matter back to the Family Court.

Justice Sureshwar Thakur and Justice Sudeepti Sharma said, "The entering of any live-in relationship by any partner to a lawful marital relationship, which may have overtones of adultery, thus is not required to be working as an obstacle rather for the mother to receive the custody of her infant/nascent children, as therebys completest motherly love and affection becomes bestowed upon them."

The Court was hearing an appeal of a mother against an order of a Family Court whereby it declined to give custody under the Hindu Minority and Guardianship Act in 2020 of the two minor children aged 6 years and 3 years and only allowed visitation rights to her.

The couple were married in 2009 and two children were born out of wedlock in 2010 and 2013. It was alleged that the husband started harassing his wife for dowry and asked her to leave the matrimonial in 2016. However, the children remained with their father and grandparents since then.

Counsel appearing for the mother argued that the children are maltreated and not taken proper care at their grandparent's house. The allegation that the mother is living an adulterous life was also denied stating that the videos given in evidence were produced with the certificate required under Section 65-B of the Indian Evidence Act.

After hearing the submissions, the Court considered the question of whether the custody of minor children to the mother be denied on grounds of allegation of adultery.

The Court opined that the adultery of any parent cannot be the grounds for denying child custody.

Reliance was placed on Mandeep Kaur v. State of Punjab [2021] wherein the Court said, "It would be worthwhile to note that in a patriarchal society, it is fairly common to cast aspersions on the moral character of a woman. More often than not these allegations are made without any basis or foundation. Even assuming a woman is or has been in an extramarital relationship, the same by itself cannot lead to the conclusion that she would not be a good mother to deny her the custody of her child."

The bench further said that a minor child is in need of the affection of both mother and father and even if the assuming that the mother of a minor child is in a live-in relationship, "therebys the care, affection or the endowment of motherliness, upon the minor child, but cannot become curtailed or fettered in any manner."

"The above is a dire biological need, and/or is a biological bondage inter se the mother and the minor children, which cannot be snapped, even if marital ties amongst the husband and the wife becomes severed or become snapped," said the Court.

Speaking for the bench Justice Thakur said that the question of whether the mother is living in adultery cannot be decided in the present case also because the same is not appropriate in the present proceeding and could have been considered if it was a plea for divorce.

In the light of the above the Court remanded the matter back to the Family Court and asked to refer the same to the counsellors.

"The counsellor concerned, on receiving the reference, may seek the assistance of the child psychologist, who may after prolonged deliberations with the minor children thus shall make unearthings whether the children are afflicted with the malady of Parental Alienation Syndrome," added the bench.

While setting aside the impugned order of the Family Court, it directed the father and grandparents of the children to hand over the custody to the mother till the matter is decided by the Family Court.

The Court also directed the child psychologists to assist the counsellors working at the Mediation Centres concerned. It further directed the District Health Officers in the States of Punjab and Haryana and in Union Territory, Chandigarh to regularly appoint child psychologists at all the Mediation Centres.

The matter is listed for October 14, for filing the compliance report.

Mr. Dushyant Godara, Advocate for Mr. Vivek Suri, Advocate for the appellant.

Mr. Vikas Chatrath, Advocate for the respondents.

Title: SXXXX v. VXXXXX

Citation: 2024 LiveLaw (PH) 258