The Bombay High Court has observed that while adultery can be a ground for divorce, it certainly cannot be a ground in granting custody of a minor child. Justice Rajesh Patil made this remark while dismissing a petition filed by the son of a former Mumbai MP, She is challenging a February 2023 family court order granting his estranged wife custody of their child.
The couple married in 2010 and had a daughter in 2015. In 2019, the woman claimed she was forcibly evicted from her matrimonial home while the man claimed his wife left alone. The man's lawyer, Indira Jaising, argued in court that the woman had had several affairs and spoke out against granting custody of the minor girl.
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Justice Patil observed that the allegation of adulterous behavior had no bearing on the decision regarding custody of the child. “There is no doubt that 'not a good wife' does not necessarily mean 'not a good mother'. Adultery can be grounds for divorce; However, this cannot be a ground for denial of custody,” Justice Patil said.
The man claimed in his plea that it was in the child's best interest to live with him and his parents. Jaising told the court that the school authorities had sent an email to the man's mother expressing concern over the girl's behavior.
However, the Supreme Court rejected this, questioning why the school should contact the paternal grandmother when the girl's parents themselves were well educated.
Advocate Ashutosh Kulkarni, representing the wife, argued that the husband's mother, a former MP, was planning to contest the upcoming Lok Sabha elections. Taking note of this, the court said, “In my opinion, when both the parents are available and well educated, the school authorities have no reason to inform the grandmother, who is a politician, about the matters relating to the minor girl and the mother. “is a doctor.”
Justice Patil emphasized that the couple's daughter is only nine years old and therefore still before puberty and that in such custody matters, the child's welfare must come first. The court found that the minor girl was cared for by her maternal grandmother and that her academic performance was good during the mother's care.
In 2020, the woman filed a police report against her husband and in-laws for harassment, assault and criminal intimidation, claiming that her daughter had also been taken away from her. She also filed a complaint under the Domestic Violence Act in a local court and applied for custody of her daughter in the family court.
In its decision of February 2023, the family court gave the wife custody of the underage girl and allowed contact with the father. However, when the daughter went to her father's apartment for a weekend visit a year later, in February 2024, he refused to return her to her mother.
The court ordered the man to hand over custody of the minor daughter to his estranged wife by April 21.
Published by:
Ramesh Sharma
Published on:
April 19, 2024
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