Even if a woman is not a good wife, it does not necessarily mean that she is not a good mother, the Court added.
Adultery cannot be a ground to deny custody of a child to a spouse, even if it is a ground for divorce, observed the Bombay High Court recently.
Even if a woman is not a good wife, it does not necessarily mean that she is not a good mother, the Court further noted.
Justice Rajesh Patil made these observations while rejecting an application filed by a man seeking custody of his minor daughter on the ground that his wife engaged in adulterous behaviour.
The Court held that even if the allegations of adultery may be proved, the custody of the minor child can be granted to the wife.
“Adultery is in any case a ground for divorce, however the same can’t be a ground for not granting custody,“ the Court said.
The Court also noted that the allegation of adultery was made by the husband in the divorce petition and that was required to be proved by leading evidence during the hearing of that petition.
“Based on the allegations, the doubt as to whether the custody can be given to the wife will have no bearing. There is no doubt as held by the various judgments that not a good wife is not necessarily that she is not a good mother. The allegations made by husband are still to be proved,” the Court held.
The couple before the Court had got married in February 2010 and they had a daughter in 2015.
The wife claimed that she was driven out of her matrimonial home in 2019 and was not given custody of the child.
The husband claimed that she had left on her own accord.
In January 2020, the husband filed a divorce petition on grounds of cruelty.
The family court in February 2023 granted custody of the child to the wife. This was challenged by the husband before the family court. In his plea to regain custody of the child, the husband claimed that he had custody of the child since December 2019.
The family court, however, rejected his plea for interim custody prompting him to approach the High Court.
Justice Patil relied on an order of the Delhi High Court of February 2024 where a Division Bench held that an ‘adulterous spouse’ does not mean an ‘incompetent parent’ and that allegations of adultery against such a parent cannot be the sole determining factor to deny the custody of the child to him/ her.
The Court noted that in the present case, the wife was a medical practitioner living in a flat close to her mother. The minor’s academic record during the custody with the mother was ‘good’ and there is no reason to grant custody to the husband, the Court held while dismissing the husband’s plea.
