Adultery Can’t Be Ground To Deny Custody Of Child, Says High Court

Mumbai: Adultery can’t be a ground for not granting custody of child, ruled Bombay High Court.

Rejecting a man’s petition seeking custody of his nine-year-old daughter from his estranged wife on grounds of adultery, the high court observed that adulterous behaviour of a woman could not be a reason to deny her custody of her child.

“Adultery is in any case a ground for divorce… however, the same can’t be a ground for not granting custody,” Justice Rajesh Patil said in a 20-page verdict on a petition filed by a 41-year-old IT professional.

The court noted that adultery was one of the grounds cited by the man in his petition filed before a family court in 2020, but it was yet to be proven.

“There is no doubt as held by various judgments that not being a good wife does not necessarily mean she is not a good mother,” Justice Patil said.

The Vile Parle resident married a doctor in February 2010, and a girl child was born to them in January 2015. Cracks started to appear in the relationship after the daughter’s birth, and the couple drifted apart.

The 39-year-old estranged wife later claimed that on December 7, 2019, she was driven out of the matrimonial home. The man, however, claimed that she left on her own.

In January 2020, she lodged a police complaint against her husband and initiated proceedings under Protection of Women from Domestic Violence (DV) Act, 2005.

The husband’s response was a petition before Bandra family court, seeking divorce on the grounds of cruelty.

On February 9, 2023, the family court allowed the wife’s plea for interim custody of the daughter, following which custody of the minor was transferred to the woman.

The man then filed for restoration of custody, but his plea was rejected by the family court on February 27, 2024. He subsequently approached the high court for relief.

The high court said there was no reason for the bench to take away custody from the mother.

“The mother of the child is a doctor by profession who is now staying in a flat within close vicinity of the daughter’s school. The mother of the wife is a home-maker who is residing with the wife. The academic record of the minor daughter during her custody with the wife is also good. Therefore, according to me, there is no reason or change in the circumstances that the custody should be changed from the wife to the husband,” the court said.

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