Adulterous/extramarital relationship of one spouse should not be the sole ground for denial of custody unless it is proven to be harmful to the child: Delhi HC

The Delhi High Court held that adulterous relationships or extramarital affairs alone should not be the basis for denial of custody of the child unless it is proven that such relationships are directly detrimental to the welfare of the child.

The court decided on the appeals filed against each other by the parents who requested sole custody of their daughters.

“Adulterous spouse is not the same as incompetent parent. Issues to consider in divorce proceedings and child custody matters may be related, but are always mutually exclusive. “Any adulterous relationship or extramarital affair of either spouse cannot be the sole determining factor for denial of custody of a child unless it is proved that the adulterous relationship itself is harmful/detrimental/detrimental to the welfare of the spouse child is,” the court’s reasoning was observed by Justice Suresh Kumar Kait and Justice Neena Bansal Krishna.

Advocate Rashmi Malhotra represented the complainant and Advocate SD Singh represented the respondent.

The appeals under Section 19 of the Family Courts Act 1984 (1984 Act) and Section 47 of the Guardians and Wards Act 1890 (1890 Act) are brought by both parties against the judgment and final order. The order granted joint custody of the minor children while raising them together. Married life was tense, which led to the parties' separation. The mother alleged erratic and irresponsible behavior by the father, abandonment and the abduction of her children by the father's sister. The mother, in her application filed under Section 25 of the 1890 Act, sought permanent custody of both daughters.

During the ongoing appeal process, the court had awarded custody to the mother, but later changed the interim arrangement and awarded custody to the father. However, the Supreme Court issued an order suspending the custody decision and maintaining the status quo. As a result, the children remained with their mother, with the father being granted visitation rights.

“In view of the fact that in such matters the interest and welfare of the children are paramount, the granting of permanent custody to the respondent/mother cannot be faulted.” “We see no reason in granting permanent custody to the Defendant/mother to intervene,” the court noted.

The husband argued that the wife's adulterous relationship excluded her from custody of the child, citing various precedents. The wife argued that she had taken care of the children during the husband's abandonment and was fully capable of meeting their needs, which justified her legal custody.

The court noted the father's disillusionment, which led to a two-and-a-half year separation from the family, but noted that this did not permanently render him unfit to be a parent. Despite the evidence of the mother's extramarital affair, the court emphasized that this alone does not exclude her from custody unless it affects the well-being of the children.

In addition, the court found that the mother took care of the children's needs despite personal matters. Both parents are financially and educationally capable, and there is no evidence that the children's education was affected during their time with either parent.

Referring to the case of Gaurav Nagpal vs Sumedha Nagpal: [(2009) 1 SCC 42], the court reiterated that a parent's love and suitability are not the sole determining factor in custody. The court observed the children's preferences and their ages (12 and 10) and found that the mother was better able to understand their needs during puberty and adolescence.

“Children are neither mere possessions nor playthings for their parents. “The absolute right of parents over the fate and life of their children must, in modern changing social conditions, give way to considerations of their well-being as human beings, so that they can grow up to be useful members of society in a normal, balanced manner,” the bench added .

In addition, the court noted the father's active involvement in the children's well-being and emphasized that the strained relationship between parents should not be the only factor in deciding custody. The court also reiterated the importance of taking into account the child's need for love, affection and contact with both parents and modified the co-parenting plan, granting the mother regular custody but the father every other Sunday, during shared school holidays, etc. Custody granted special occasions.

The court ordered the parents to make decisions together about the children's education and future, with regular communication and the children's well-being at the forefront. The court emphasized that both parents should refrain from speaking ill of each other and work together for the well-being of the children.

Accordingly, the court dismissed the appeals.

Cause title: X vs. Y (2024:DHC:782-DB)

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