The Bombay High Court on Friday ruled that adultery can be a ground for divorce but not for granting custody of a child while granting custody of a nine-year-old girl to her mother.
“Not being a good wife does not necessarily mean she is not a good mother. Adultery can be a ground for divorce, however, the same cannot be a ground for not granting custody,” a single bench of Justice Rajesh Patil observed on 12 April while dismissing a petition filed by the man, son of a former legislator, challenging an order passed by the family court in February 2023 granting custody of his daughter to his estranged wife.
The couple exchanged vows in 2010 and their daughter was born in 2015. By 2019, the woman said she had been ousted from their shared residence, whereas the petitioner contended she had left on her own.
Representing the petitioner, Indira Jaising apprised the court of the woman’s purported extramarital involvements, suggesting that granting her custody of the child would be inappropriate.
Justice Patil underscored that allegations of infidelity should not sway the determination of custody.
In his plea, the man argued that the child’s welfare would be best served by residing with him and his parents, citing her purported unhappiness with her mother and observable changes in behavior.
Jaising informed the court of correspondence from the girl’s school authorities to the petitioner’s mother, expressing concerns about the child’s conduct.
The high court, however, refused to accept this and questioned why the school got in touch with the paternal grandmother when the parents were well-educated.
It noted that the petitioner’s mother was a former legislator aspiring to contest the Lok Sabha elections.
“According to me, the school authorities have no reason to inform about the issues relating to the girl to the grandmother, who is a politician, when both the parents of the child are available, well-educated, and in fact, the mother of the child is a doctor,” the court said.
Justice Patil noted that the girl was only nine, which is a pre-puberty age, and in such custody matters, the court must consider the welfare of the child as paramount.
The girl was taken care of by her maternal grandmother, and her academic record during her custody with the mother was also good, he said.
Therefore, according to me, there is no reason to change the custody from the wife to the husband, the court said.
The bench directed the petitioner to hand over his daughter’s custody to the wife by April 21.
In 2020, the woman lodged a police complaint against her husband and her in-laws, alleging harassment, assault, and criminal intimidation. She claimed that her daughter was taken away from her.
The woman also filed a complaint under the Domestic Violence Act before a magistrate’s court and an application before the family court seeking custody of her daughter.
The man also filed a petition in the family court seeking divorce from the woman and custody of the daughter.
In February 2023, the family court handed over custody of the girl to the mother and allowed access to the father.
However, in February this year, when the girl went to her father’s residence for weekend access, he refused to hand the child over to the mother.
With inputs from agencies
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