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Synopsis

The Bombay High Court, in its recent ruling, held that while adultery may constitute a legitimate basis for divorce proceedings, it does not serve as a valid ground for denying child custody. This decision stems from a case where a husband challenged a ruling from the family court, which denied his request for temporary custody of his 9-year-old daughter. The family court's decision followed a complaint filed by the wife, accusing the husband of assaulting her and her father. 

“Even though the allegations are proved as regards the wife’s extra martial affair, still as far as the custody of the minor children is concerned, in a given case, the same 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 bench of Justice Rajesh S. Patil held. 

Representing the husband, Senior Advocate Indira Jaising argued that despite adhering to court-mandated visits to foster the wife's relationship with the child, no substantial bond had formed between them over a year. Reports were submitted demonstrating the child's discomfort in the wife's care.

Advocate Ashutosh Kulkarni, representing the wife, countered that the husband consistently attempted to negatively influence the daughter.

The high court observed that interim custody had been awarded to the wife on February 9, 2023, with the husband granted weekend visitation rights. Nevertheless, the husband failed to return the daughter to the wife for approximately seven days starting February 11, 2024, resulting in the child's absence from school.

Furthermore, the court noted the child's academic and extracurricular achievements while in the mother's custody and highlighted that “The academic record of the minor daughter…was ‘good’. The school report shows that the progress of the minor daughter was quite good during the said period. So also, she was doing good in extracurricular activities”. 

The court raised concerns regarding the involvement of an individual named ‘Neha’, purportedly advocating for the daughter's safety in the wife's care. The court also questioned the authenticity of handwritten notes allegedly penned by the daughter and presented by the husband, particularly as they were purportedly written during weekdays when the child was under the wife's care.

“There is no explanation from the husband as to the name of the minor daughter’s friend to whom the said alleged Notes/chits were given by minor daughter and how her friend managed to come in contact with the husband”, the court highlighted.

The bench reiterated that in deciding the custody of a minor, the ‘welfare of the child’ is paramount, not the parents' rights as per the statute. It emphasized, “The academic record of the minor daughter during her custody with the wife is also good. Therefore… there is no reason or change in the circumstances that the custody should be changed from the Wife to the Husband”.

The court emphasized that accusations of adultery against the wife, raised in a marriage petition, must be substantiated with evidence in the family court. Nonetheless, it stressed that a wife's conduct in marriage does not necessarily reflect her suitability as a mother. “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 court highlighted.

Accordingly, the court dismissed the petition of the husband. 

Advocates for petitioners: Senior Advocate Indira Jaising with Advocates Chitra Phadke, Atharva Dandekar, and Hitendra Parab.

Advocates for respondents: Advocates Ashutosh Kulkarni and Akshay Kulkarni.

Case Title: Abhishek Ajit Chavan v Gauri Abhishek Chavan [2024:BHC-AS:18074]