Refusal Of Child's Custody To Mother On Unfounded Allegations Of Adultery Illegal: Bombay High Court

The Bombay High Court has held that unfounded allegations of adultery against a woman cannot be a ground for denying her the custody of her children.

It further held that allegations of adultery cannot be proved by way of an affidavit and it is important that the Trial Court allows the parties to lead full-evidence, before deciding the question of custody on that ground.

"This is totally illegal. When the full-fledged evidence was not led, the Court had not conclude that the allegations of adultery are proved, merely, because some documents have been produced, it cannot be taken as supporting evidence and then a conclusion can be drawn that wife/mother is not entitled to get custody. It will have to be held that at this stage, in this matter, allegations of adultery are not proved by the husband," Justice VV Kankanwadi observed.

The High Court also noted that the procedure that was adopted by the Trial Judge was itself wrong on three counts:

(i) The Judge ought to have given proper opportunity to lead the evidence to both sides. The point, which could not have been decided only on the basis of affidavits have been considered in that way. 

(ii) There was no mandatory certificate under Section 65-B of the Indian Evidence Act with respect to mobile transcriptions and photographs presented before the Court by the Respondent to raise allegations of adultery.

(iii) No opportunity was given to the wife to cross-examine the husband on the allegations of adultery.

"Whatever has been stated in the affidavit has been stated as gospel truth by the learned Trial Judge, especially that of the respondent-husband," the High Court remarked.

Background

The Petitioners sought the custody of her two children – a daughter aged 6 and a son aged 2. She stated that the Trial Court had passed an order denying her their custody, without considering the legal aspects involved in the matter.

The son of the parties is only two years old and in view of proviso to Clause (a) of Section 6 of the Hindu Minority and Guardianship Act provides for the custody of the child, who is below five years of age to the mother, as she is considered as the natural guardian, she submitted.

It was also submitted that though the girl is more than five years, yet, she being the girl should be placed in the custody of the mother. The approach of the learned Trial Judge in interacting with the girl and coming to the conclusion that she has no desire to go with the mother itself has been wrongly arrived at.

The Respondent argued that the Appellant is leading an adulterous life and cannot look after the children, as it would affect the children's welfare. He also relied on the interaction of the Trial Judge with the daughter, where she specifically showed unwillingness to go with her mother. It was further alleged that the Appellant ill-treats the children, and thus the custody has been rightly refused.

Findings

At the outset, the Court observed that the procedure adopted by the District Judge appears to be not correct. "No doubt, both the parties had given pursis before him stating that they do not want to lead evidence and it appears that both the parties had relied on their affidavits. Interesting point to be noted is that taking those affidavits as affidavit-in-chief there could have been an opportunity to the either side to cross-examine each other," the High Court observed.

It added,

"There was no opportunity to the wife to cross-examine the husband, and therefore, when, though the fact of adultery is alleged and it has not been proved by cogent and conclusive evidence by the husband, the Trial Judge ought not to have even considered it for a sentence also."

On the issue of the daughter expressing her unwillingness to go with the mother, the High Court opined, "A child of 6 years may be intelligent, in a way that he/she would be answering all the questions, those have been put, but as regards the choice that he/she was supposed to make between the father and the mother, which itself is a complex question, then the ordinary intelligence alone should not be considered."

Lastly, on the issue that the Appellant assaults the children, the Court noted that the said incidents had occurred only twice or thrice, perhaps for betterment of the child. The order stated,

"Important point to be noted is that definitely the mother if she find that the child is doing some wrong thing, then at some point of time due to anger may assault, but that would be with the intention that the child should not commit such wrong in future. No doubt, it appears that the girl is affectionate to the grand parents and it is obvious. The grand parents always love their grand children and they pamper them like anything. They equally give moral education and good treatment, so that the child should develop as a good human being. It is universally observed that grand parents protect their grand children more than the parents of the children. Whenever parents of the children either scold them or beat them, for any reason, the child immediately goes to the grand parents, where he or she would be consoled. Therefore, the comfortable point is concerned, definitely, the girl would have said that she is more comfortable in that house. However, it is the basic fact, as to whether the girl, who is aged 6, was in a better position to make the choice."

In light of these observations, the matter is remanded back to the Trial Court which has been directed to allow an opportunity of hearing to both the parties to lead evidence supporting their respective contentions and decide the case on merits. Meanwhile, custody of both children is granted to the mother till final disposal (with visitation rights to the father).

Case Title: Ratnamala Pandurang Zate v. Pandurang Udhav Zate

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