In a recent ruling, the Bombay High Court affirmed that allegations of adultery cannot serve as a basis for denying custody of a child to a spouse, even if such behavior may be a ground for divorce.

"Adultery is in any case a ground for divorce; however, the same can’t be a ground for not granting custody," the Court observed.

The Bench of Justice Rajesh Patil emphasized that being a good spouse does not necessarily correlate with being a good parent, underscoring the importance of evaluating custody arrangements based on the child's best interests.

"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 ruled.

The Court's decision came in response to an Application filed by a husband seeking custody of his minor daughter, citing his wife's alleged adulterous conduct. The Court while rejecting the husband's plea, asserted that even if the accusations of adultery were proven, they did not automatically disqualify the wife from obtaining custody.

While acknowledging the husband's claims in the Divorce Petition, the Court emphasized that such allegations must be substantiated with evidence during the divorce proceedings. It cited precedents highlighting that being an adulterous spouse does not equate to being an incompetent parent, emphasizing that custody decisions should prioritize the child's welfare over marital disputes.

The case involved a couple married since 2010, with a daughter born in 2015. The wife asserted that she was forcibly evicted from their matrimonial home in 2019 and was denied custody of their child. Following a Divorce Petition filed by the husband in 2020, the Family Court granted custody to the wife in 2023. The custody was challenged by the husband in the Family Court and that decision was later upheld. Hence, the husband approached the High Court challenging it.

The Court said that in any custody matter, it has to see the welfare of the child. In the present case, the Court noted the wife's profession as a medical practitioner, her close proximity to her mother's residence, and the child's satisfactory academic progress under her care as factors supporting the custody arrangement.

"In the present proceedings, the child is a ‘girl’ and aged only of 9 years which is pre-puberty age. The mother of the child is a doctor by profession who is now staying in a flat within the close vicinity nearby the daughter’s school. The mother of the wife who is a home-maker and is residing with the wife. The academic record of the minor daughter during her custody with the wife is also good. Therefore, according to me, there is no reason or change in the circumstances that the custody should be changed from the Wife to the Husband," the Court opined.

The Court also relied on a Delhi High Court Judgment from February 2024, which similarly underscored that allegations of adultery do not automatically disqualify a parent from obtaining custody.

While directing the husband to hand over the custody of the minor daughter to the wife by April 21, 2024, the Court dismissed the Writ Petition. "Hence, this writ petition fails. No costs.The petitioner is directed to hand over the custody of the minor daughter to the respondent wife by 21 April, 2024," the Court ordered.

Cause Title: X v. Y


Petitioner: Senior Advocate Indira Jaising, Advocates Chitra Phadke, Atharva Dandekar, Hitendra Parab

Respondent: Advocates Ashutosh Kulkarni, Akshay Kulkarni

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