The Bombay High Court in its order dated April 12, 2024 upheld a family court order allowing custody of the minor daughter to the mother, despite allegedly living in adultery.
The High Court was of the view that adulterous behaviour of the respondent wife cannot become grounds for not granting her custody of her child.
READ ORDER | Sex Outside Marriage Not An Offence; Live-in Relationship Cannot Be Constituted As Adultery: Rajasthan High Court
Case:
Parties got married in February 2010. A daughter was born to them in the year 2015. However, according to the wife, she was thrown out of matrimonial home in 2019 and the custody of their minor daughter was not given to her. On the other hand, the husband claimed that the wife had left home on her own will.
When the wife filed for interim custody of their child, the husband initiated a divorce petition on grounds of cruelty.
The husband in this case is a 41-year-old IT professional and son of a former legislator in Maharashtra, while the wife is a doctor by profession.
READ ORDER | Madhya Pradesh High Court Upholds Maintenance To Divorced Wife Living In Adultery
Allegations by Wife
In January 2020, the wife had filed a complaint against her husband and registered a case under the Protection of Women from Domestic Violence (DV) Act, 2005 accusing his family members of harassment.
In February 2023, the family court granted the interim custody of their minor daughter to the wife.
READ JUDGEMENT | Wife Living In Adultery Not Entitled To Permanent Alimony: Punjab & Haryana High Court
Defense by Husband
The petitioner husband sought a restoration plea citing that the daughter was residing with him since December 2019, however, his plea for interim custody was rejected by the family court. This order was challenged by the husband in the Bombay High Court.
Notable women rights lawyer and senior advocate Indira Jaising who represented the husband, argued that the minor daughter was not comfortable in her mother’s custody and it would not be proper for her to be in the custody of a mother who allegedly had multiple affairs.
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Bombay High Court
A single judge bench of Justice Rajesh S. Patil rejected the claims of the husband and observed:
Adultery is in any case a ground for divorce, however the same can’t be a ground for not granting custody.
Adding further the judge said that in matters related to child custody, ‘welfare of the child’ has to be paramount and since in this case the child is in her pre-puberty stage, the custody must remain with the mother.
With regards to the adultery charges levelled by the husband, the court observed that though the alleged adulterous behaviour of estranged wife were part of his plea before family court filed in 2020, the same were yet to be proven by leading evidence before the said court. To this Justice Patil remarked:
Based on the allegations, the doubt as to whether the custody can be given to the wife will have no bearing. There is no doubt, as held by various judgments, that not being a good wife does not amount to not being a good mother.
Justice Patil further cited a recent Delhi High Court judgment which read:
Even though the allegations are proved as regards to the wife’s extramarital affair, as far as custody of the minor children is concerned, in a given case, the same can be granted to the wife.
The High Court also added that respondent wife is residing close to her daughter’s school along with the maternal grandmother of the child. The bench further observed that the child’s academic record during her stay with the mother was ‘good’ and held that there was ‘no reason’ to grant custody of the girl to her father.
Thus, concluding the matter, the Bombay High Court upheld the custody to the estranged wife, and instructed the husband to hand over the daughter to the mother within two days.
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Voice For Men India Opinion:
- Adultery was decriminalised in India in 2018, however, the same remains a valid ground for divorce
- Sadly, child custody matters become a part of divorce proceedings and the same are very much inter-related when the matters are in court
- In the recent years, Courts have drawn a bifurcation between the moral obligation of wife living in adultery Vs her right to claim maintenance or get child custody
- Though the law is clear that maintenance must be rejected to wife who is living in adultery, we have had some High Courts yet granting maintenance to wives, pardoning the alleged charges as ‘occasional adultery’
- When it comes to child custody cases, surely the interest of the child must be supreme before deciding any case, however, when genders are reversed, a great hands-on loving father is even denied access to meeting his own child, only because he is wither living with another woman after separation or he has remarried or perhaps he is not earning enough
- The matrimonial laws and system completely tilt towards women and in the end, the husbands realise how they are fighting a lost cause
- By the time such alienated children grow up, they have been completely brainwashed by custodial parent against the non-custodial ones (most often, the fathers)
- Overall, Judgements/Orders like the above, will encourage more women to leave their matrimonial homes, unilaterally walk away with children, live in adultery, yet harass their estranged husbands to foot their bills throughout their life without consenting to divorce
DO WATCH:
When I Caught My Wife In Adultery, She Left Me & Snatched Away Our Kids | His Story
READ RELATED ARTICLES:
READ ORDER | Occasional Adultery By Wife Cannot Be A Ground To Deny Maintenance To Wife: Delhi High Court
READ ORDER | Issue Of Adultery To Be Decided Later, Not During Grant Of Interim Maintenance To Wife: Delhi High Court
READ JUDGMENT | Can Husband Live With Another Woman During Pendency Of Divorce Proceedings? Delhi High Court Responds
LEAVE YOUR COMMENTS BELOW:
READ ORDER | Adultery By Wife Cannot Be Grounds To Deny Her Child Custody: Bombay High Court
— Voice For Men India (@voiceformenind) April 22, 2024
▪️Justice Rajesh S Patil: "Adultery is in any case a ground for divorce, however the same can’t be a ground for not granting custody"#VoiceForMen https://t.co/7L3Lp6oJ1t
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