The Aurangabad Bench of Bombay High Court denied custody of minor children to the father for failing to provide evidences of Adultery by wife.
The court further held that allegations of adultery cannot be proved by way of an affidavit and that it was important that the Trial Court to allow the parties to lead full-evidence, before deciding the question of custody on that ground. Justice VV Kankanwadi observed.
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.
The Petitioner wife sought the custody of her two children – a daughter aged 6–years and a son aged 2-years. She appealed that the Trial Court had passed an order denying her their custody, without considering the legal aspects involved in the matter.
Arguments By Mother
According to the mother, the son of the parties is only two-years-old and she referred to the 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.
With regards to the daughter, the mother also submitted that though the girl is more than five-years-old, she being a girl should be placed in the custody of the mother. The mother said that approach of the learned Trial Judge in interacting with the girl and coming to the conclusion that she has no desire to go with her, itself has been wrongly arrived at.
Arguments By Father
The Respondent father 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 the daughter 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.
Bombay High Court
The High Court also noted that the procedure that was adopted by the Trial Judge was itself wrong on three counts:
- 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
- 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
- No opportunity was given to the wife to cross-examine the husband on the allegations of adultery
The high court said,
Whatever has been stated in the affidavit has been stated as gospel truth by the learned Trial Judge, especially that of the respondent-husband.
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