READ ORDER | Adultery of wife cannot be a ground to deny her custody: Bombay High Court – Voice For Men
The Bombay High Court in its order dated April 12, 2024 confirmed a family court order granting the mother custody of her underage daughter, even though she had allegedly committed adultery.
The Supreme Court was of the opinion that adulterous behavior of the wife interviewed can't be a reason for it not to grant her custody of her child.
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Case:
Parties got married February 2010. A daughter was born to them this year 2015. However, according to the wife, she was evicted from the marital home in 2010 2019 and she was not given custody of her minor daughter. On the other hand, the husband claimed that the wife left the house of her own accord.
When the wife filed for temporary custody of their child, the husband filed for divorce on the 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 for divorced wife who committed adultery
Wife's allegations
In January 2020The woman had lodged a complaint against her husband and filed 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 gave the wife temporary custody of the underage daughter.
READ VERDICT | Wife living in adultery not entitled to permanent maintenance: Supreme Court of Punjab and Haryana
Defense by husband
The plaintiff's husband applied for reinstatement on the grounds that the daughter had been living with him since then December 2019However, his application for temporary accommodation was rejected by the family court. This order was challenged by the husband in the Bombay High Court.
Noted women's rights lawyer and senior advocate Indira Jaising, who represented the husband, argued that the minor daughter was not comfortable in her mother's care and it would not be appropriate for her to be in the care of a mother who was allegedly having multiple affairs.
Family court must assist wife in obtaining evidence of husband's adultery: Delhi High Court
Bombay High Court
A single bench bench of Justice Rajesh S. Patil dismissed the husband's claims and observed:
Adultery is in any case a reason for divorce, but it cannot be a reason for not granting custody.
In addition, the judge said that in matters related to child custody “Welfare of the child” Custody must be the priority and since the child in this case is in the pre-pubescent stage, custody must remain with the mother.
Regarding the adultery allegations made by the husband, the court noted that although the estranged wife's alleged adulterous behavior was part of his plea filed in the family court in 2020, this was also the case still needs to be proven by presenting evidence before the said court. On this, Justice Patil remarked:
Due to the allegations, the doubt as to whether custody can be given to the wife will not play a role. There is no doubt that being a bad wife does not equate to not being a good mother.
Justice Patil further quoted a recent one Delhi High Court Judgment which read:
Even if the allegations regarding the wife's extramarital affair are proven, the wife can be awarded custody of the minor children in individual cases.
The Supreme Court also added that the defendant's wife lives near her daughter's school along with the child's maternal grandmother. The court also noted that the child's academic performance during his stay with her mother was “good” and found that there was “no reason” to give custody of the girl to her father.
Concluding the matter, the Bombay High Court confirmed the custody of the estranged wife and directed the husband to hand over the daughter to the mother within two days.
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Opinion of Voice For Men India:
- Adultery was decriminalized in India in 2018, but it remains a valid ground for divorce
- Unfortunately, custody matters become a part of divorce proceedings and these are closely linked when the matters are heard in court
- In recent years, courts have drawn a distinction between the moral obligation of an adulterous wife and her right to support or child custody
- Although the law clearly states that a wife who has committed adultery must be denied maintenance, there have been some high courts that have granted maintenance to wives and pardoned the alleged charges as “casual adultery.”
- When it comes to custody cases, the child's interest must certainly come first before a case is decided. However, when the genders are reversed, a great, hands-on, loving father is denied access to even his own child simply because he is no longer living with another woman after the separation, has remarried, or is not earning enough
- Marriage laws and the marriage system completely biases women, and in the end husbands realize that they are fighting a losing cause
- When such alienated children grow up, they have been completely brainwashed by the custodial parents over the non-custodial parents (most often the fathers).
- Overall, judgments/orders like the above will encourage more women to leave their matrimonial home, unilaterally leave with children, commit adultery and yet harass their estranged husbands to pay their bills throughout their lives without agreeing to divorce
WATCH:
When I caught my wife in adultery, she left me and took our children | His story
READ RELATED ARTICLES:
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READ ORDER | Adultery of wife cannot be a ground for denying her custody: Bombay High Court
▪️Judge Rajesh S. Patil: “Adultery is a ground for divorce in any case, but the same cannot be a ground for denial of custody”#VoiceForMen https://t.co/7L3Lp6oJ1t
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