The Delhi High Court in its judgment dated January 30, 2024 upheld a Family Court order granting joint custody of two minor daughters to the mother and the father, while observing that an adulterous spouse is not equivalent to an incompetent parent.
A bench of Justices Suresh Kumar Kait and Neena Bansal Krishna ruled:
An extramarital affair of a person cannot be the sole determining factor to deny them custody of a child.
Parties got married in November 2004 according to Hindu rites and customs and have two daughters aged 12 and 10 years as on date.
Due to matrimonial disputes, the couple parted ways in February 2018 and have been living separately since six years.
The husband filed for divorce in February 2018, and in March 2018, the wife rebounded with multiple cases under Section 497, Section 498-A & Section 34 of the IPC.
Both parties have also been battling for custody of minor daughters.
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Trial Court, Noida
In December 2019, the trial court handed over custody of the girls to the mother. However, since the daughters were comfortable in the company of both parents, the Family Court devised a Shared Parenting plan keeping in mind the welfare of the children.
The father was expected to shift to Noida (get a rented accommodation) where the mother and kids resided. Both parents would enjoy custody of daughters for 2 weeks continuously every month.
This order was challenged by both the husband as well as the wife making their respective submissions.
Submissions by Wife
According to the wife, her husband was erratic and irresponsible, and had run away to some ashram and unknown places abandoning her and the two children for nearly two-and-half years. She claimed the children were kidnapped by her husband’s sister and she was ousted from her matrimonial home.
She further alleged that she was not even allowed to talk to her daughters which prompted her to file a custody petition.
Arguments by Husband
The husband argued that the wife’s claim to guardianship of their two daughters was a counter blast to the divorce petition and criminal complaint he had filed against her on grounds of cruelty and adultery (adultery was a criminal offence until September 2018).
The husband also alleged that his wife was irresponsible as she did not take care of the children and spent most of her time and energy on her illicit relationship. Accordingly, he urged the court to disentitle the wife from their children’s custody on account of her adulterous relationship.
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Delhi High Court
The bench of Justices Suresh Kumar Kait and Neena Bansal Krishna went through the submissions, arguments and evidences on record and came to the conclusion that points for consideration in divorce proceedings and custody matters may be co-related but they are always “mutually exclusive”.
With respect to the husband’s allegations of wife’s adultery, the bench came to the conclusion that indeed the wife was involved in an extra-marital affair. However, the bench went on to add that though it has been proven that the mother had an extra-marital relationship, this itself cannot be the ground to deny her their children’s custody unless there is something more to establish that her interests elsewhere impacted their welfare.
The bench observed:
Even when adultery by a parent has been proved, it cannot disentitle him or her of the custody of children unless there is something more to prove that such adulterous act has affected the welfare of the children.
Adding further, the bench said:
Any adulterous relationship or extramarital affair of either spouse, cannot be the sole determining factor to deny custody of a child, unless it is proved that the adulterous relationship in itself is pernicious/ detrimental/ injurious to the welfare of the child.
Welfare of Children Vs Illicit Affair
The Delhi High Court noted the evidence on record which reflected that the mother frequently spent her time with the third person “in whom she had special interest”, but there was not an iota of evidence to show that she, in any way, had failed to take care of the needs of the children.
Rejecting the plea to interfere with the family court order of granting both parents joint custody of the children, the Delhi High Court concluded:
The respondent/mother may not have been a faithful or a good wife to the appellant/husband, but that in itself is not sufficient to conclude that she is unfit to have the custody of the minor children, especially when no evidence has been brought on record to prove that she in any manner, neglected to take care of the children or that her conduct has resulted in bad influence of any kind, on the children.
Voice For Men India Take:
- Marriages are no more forever and the sooner younger generation accepts this state of institution, it will be easier for them to grapple with the situation
- Do we support adultery by either spouses during the subsistence of marriage? Definitely not, however, neither sides can force the other to co-habit against their wishes
- The biggest challenge in these complex human relationships is the welfare of children whose parents are at war in the courts
- Most often, the minors are used as pawns to deprive the other spouse from the joys of equal parenting
- In the case above, the Delhi High Court at a macro level may be correct in letting the children enjoy company of both parents, particularly when they did not find any misconduct on part of the mother when she was expected to devote her time for the kids
- Having said so, what happens when the situation is reversed and it is a father who is involved in such relationships? There are numerous examples and judgments where men have been morally shamed and also disrobed of their rights even to speak with their children on account of adultery
- Voice For Men India too, has always maintained that a couple may opt for divorce, but they should continue their respective parenting responsibilities individually
- If the High Court has taken a stand to overlook wife’s adultery because she is a good mother, hopefully, all Family Courts across India will also apply similar standards when genders are reversed
- Welfare of Children is definitely paramount, but it cannot be selectively used to benefit only the ‘morally erring mothers’
Occasional Adultery No Grounds To Deny Maintenance To Wife | Delhi High Court (April 2022)
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READ JUDGMENT | Proven Adultery By Wife Cannot Be Sole Grounds To Deny Her Children's Custody: Delhi High Court— Voice For Men India (@voiceformenind) February 5, 2024
▪️HC: "Can't disentitle him or her custody unless there is something more to prove that such adulterous act affected welfare of children"https://t.co/qS5hUJWBqr
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