Adultery can be a ground for divorce but cannot be a ground for granting custody of a minor child, the Bombay High Court has observed. The court ordered the man to hand over custody of a nine-year-old girl to her mother, while rejecting a lawsuit filed by a father who is a son of a former lawmaker.
The HC was hearing a plea filed by the man challenging the February 2023 order of the family court granting custody of their minor daughter to his estranged wife.
The couple married in 2010 and their daughter was born in 2015. The woman, a doctor, claimed she was evicted from the marital home in 2019. She also claimed that the man retained custody of her daughter and did not allow her to meet her. However, the man claimed that the woman left the house alone.
His lawyer Indira Jaising argued in court that the woman had had several affairs and therefore it was not appropriate to give her custody of the minor girl.
Justice Manish Pital, however, noted that allegations of adulterous behavior by a woman will not play a role in deciding the issue of custody of the child.
“There is no doubt that 'not a good wife' does not necessarily mean she is not a good mother. Adultery may be grounds for divorce, but it cannot be grounds for denial of custody,” the judge said on April 12.
The man further claimed that it was in the child's best interest to live with him and his parents. He noted that the child's school district had sent emails to his mother expressing concern about her behavior.
The judge refused to accept the claim and questioned why the school should contact the grandparents when the girl's parents themselves were well educated.
The court noted that the man's mother was a former MP and was also planning to contest the upcoming Lok Sabha elections. “In my opinion, the school authorities have no reason to inform the grandmother who is a politician about the matters related to the minor girl when both parents of the child are available, well educated and are actually the mother of the child “A child is one Doctor,” the court emphasized.
Furthermore, the girl is only nine years old, which can be described as pre-pubescent age, and in such custody matters the court must consider the best interests of the child as paramount.
In the order, the court emphasized that the girl was being cared for by her maternal grandmother and her academic performance was also good during the mother's care. “Therefore, in my opinion, there is no reason to transfer custody from the wife to the husband,” said the judge.
Therefore, the court directed the man to hand over custody of the child to her wife by April 21.
The woman had filed a complaint against her husband and in-laws in 2020 for harassment, assault and criminal intimidation. She had also alleged that the child was forcibly taken away from her.
She had also filed a complaint under the Domestic Violence Act in a local court and filed an application for custody of her daughter in the family court.
The man also filed a petition for divorce and custody of his daughter in the family court.
In 2023, the family court ordered him to hand over custody of the daughter to the women and granted him access.
However, the woman claimed that the man refused to return the daughter when she went to his home during a weekend visit in February this year.
Published on: Saturday, April 20, 2024 07:14 AM IST
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