Bombay High Court: In a writ petition filed by a husband challenging the order of the Family Court, Mumbai, that dismissed his application for the interim custody of his minor daughter, the Bench of Rajesh S Patil, J.*, held that adultery is a ground for divorce and not for refusal of child custody to the alleged adulterous wife. The application for custody was moved by him during the divorce petition between him and his wife before the Family Court, before which the husband has not proved the allegations of adultery against his wife.
Background
A writ petition was filed by the husband under Article 227 of the Constitution challenging the order of the Family Court that dismissed his interim application for modification custody terms of his minor daughter. The application for the custody of daughter was made during the Divorce Petition between the husband and the wife in the instant case. The alleged grounds for divorce by the husband were the wife’s alleged adulterous behavior.
The Family Court, while dismissing the husband’s application for the custody of his daughter, reasoned that since the husband’s and his family members are working, his 9-year-old daughter will be taken care by a maid. Whereas the wife, who is a doctor by profession, but had taken up residence on leave and license basis near the daughter’s school, is in a better position to look after the minor daughter, especially as the wife’s mother is a homemaker and would be present to look after the daughter in the wife’s absence.
Analysis and Judgment
After considering the arguments from both sides, the Court said that the fact that the parents are both working is undisputed. The Court noted that the husband’s mother is a political figure and is aspiring to contest the upcoming Lok Sabha elections and wielded immense influence due to her political status.
Referring to the Supreme Court case of Nil Ratan Kundu v. Abhijit Kundu, (2008) 9 SCC 413 wherein, principles of law were laid down for determining the custody of a minor child, that the ‘welfare of the child’ should be paramount, and not the rights of the parents, the Court pointed out that In the instant proceedings, the child was of pre-puberty age, and her mother was now staying in a flat near the daughter’s school. The daughter’s maternal grandmother, a homemaker, also resides with the mother. The academic performance of the daughter during her custody with her mother was also found to be good. Therefore, the Court opined that there was no reason for change in the circumstances that custody should be changed from the wife to the husband.
Regarding the husband’s submission about the adulterous behavior of the wife, the Court further opined that they were allegations made in the Divorce petition by husband before Family Court, that must be proved by leading evidence before that Court. Therefore, based on the allegations, the doubt as to whether the custody can be given to the wife will have no bearing. Referring to several judicial precedents on the issue, the Court reiterated that even if one is not a good wife, the same does not necessarily mean that she is not a good mother as well.
The Court relied on the judgment of Vineet Gupta v. Mukta Aggarwal, 2024 SCC Online Del 678, wherein it was held that despite the proving of allegations regarding the wife’s extramarital affairs, the custody of the minor children can be granted to the wife.
The Court thus held that adultery is a ground for divorce, and not a ground for refusing child custody. Hence, the husband’s writ petition failed, and he was directed to hand over the custody of the minor daughter to the respondent wife by 21-04- 2024.
[Abhishek Chavan v. Gauri Chavan, 2024 SCC OnLine Bom 1140, Decided on: 19-04-2024]
*Judgment by Justice Rajesh S. Patil
Advocates who appeared in this case :
Advocates for the Petitioner: Indira Jaising, Senior Advocate, Chitra Phadke, Advocate, Atharva Dandekar, Advocate, Hitendra Parab, Advocate
Advocates for the Respondent: Ashutosh Kulkarni, Advocate, and Akshay Kulkarni, Advocate
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