Although Adultery Is Ground For Divorce, It Can’t Be A Ground To Deny Child’s Custody: Bombay HC

While ruling on a very significant legal point pertaining to the custody of the child in matrimonial dispute cases, the Bombay High Court in a most learned, laudable, landmark and latest judgment titled Abhishek Ajit Chavan vs Gauri Abhishek Chavan in Writ Petition No. 4060 of 2024 and cited in Neutral Citation No.: 2024:BHC-AS:18074 that was reserved on April 12, 2024 and then finally pronounced on April 19, 2024 in exercise of its civil appellate jurisdiction has held in no uncertain terms that adultery is a ground for divorce but cannot be a ground for denying custody of a child. It must be mentioned here that the Single Judge Bench comprising of Hon’ble Mr Justice Rajesh Patil dismissed a writ petition that had been filed by son of a former legislator seeking custody of his nine-year-old daughter from his estranged wife on grounds of adultery. The Court held that, “Adultery is in any case a ground for divorce, however the same can’t be a ground for not granting custody.”

At the very outset, this brief, brilliant, bold and balanced judgment authored by the Single Judge Bench comprising of Hon’ble Mr Justice Rajesh Patil of Bombay High Court sets the ball in motion by first and foremost putting forth in para 1 that, “This Writ Petition is filed by the Husband, challenging the judgment and order dated 27 February 2024, passed by the Judge of the Family Court, Mumbai, thereby dismissing the husband application (exhibit-147) in Divorce Petition filed by the husband (exhibit-147) was filed by the husband seeking temporary custody of minor daughter aged 9 years now.”

To put things in perspective, the Bench envisages in para 2 that, “The Petitioner (husband) and the respondent (wife) got married on 18 February 2010. For the convenience, the Petitioner is referred as “Husband” and Respondent is referred as “wife”. The husband is an I.T. profession and the wife is a doctor by profession. On 4 January 2015 daughter was born out of the wedlock of the petitioner and respondent.”

As we see, the Bench then discloses in para 3 that, “On 7 December 2019 as per the case of wife, she was driven out of the matrimonial house and the custody of the daughter was not given to her. According to the husband, the wife on her own had left the matrimonial house.”

It is then further unfolded in para 4 that, “A police complaint was lodged by the wife against the husband on 2 January 2020. Thereafter, as per the case of the wife, she and her father were assaulted by the husband, the minor daughter was snatched.”

Truth be told, the Bench discloses in para 5 that, “On 16 January 2020 the wife lodged F.I.R. No. 15 of 2020 against the husband and his family members, under Section 498-A, 377, 354, 323, 506, 504 read with Section 34 of the Indian Penal Code, 1860.”

To be sure, the Bench then lays bare in para 6 that, “The wife on 22 January 2020 filed a complaint under Domestic Violence Act, before the JMFC, at Boriwali. So also, an application was filed for seeking interim custody of the minor daughter.”

Plainly speaking, the Bench observes in para 28 that, “This writ petition has been filed under Article 227 of the Constitution of India, by the husband challenging an Order passed dismissing his application filed for seeking modification of order of interim custody of 9 year old daughter.”

Delving deeper, the Bench lays bare in para 29 that, “As per the order dated 9 February 2023, the Family Court had granted custody of 9 year old daughter to the wife, who is a doctor by profession. The said order passed by the Family Court was challenged by husband by way of writ petition bearing no. 2048 of 2023 in this Court. Initially after filing of the petition when the matter was moved for urgent orders by the husband, this Court refused to give any kind of relief to the husband.”

Truly speaking, the Bench discloses in para 30 that, “Admittedly, on 24 February 2023 the custody of the minor daughter was handed over by the husband, to the wife. However, the husband was granted physical access of the minor daughter on weekends and video access of alternate days. The writ petition filed by the husband was ultimately dismissed by this Court on 21 July, 2023. Admittedly, the said order dated 21 July, 2023 attained finality as the husband did not challenge the said order.”

Needless to say, the Bench states in para 31 that, “The custody of the minor daughter remained with the wife from 24 February 2023 till 9 February 2024, for a period of roughly one year.”

Further, the Bench discloses in para 32 that, “On 9 February 2024 the minor daughter as per the earlier order passed went to residence of the husband for weekend access. As per the direction passed in the order, on 11 February 2024 being a Sunday she was supposed to go back to the residence of wife, however, daughter did not return to home of the wife.”

Furthermore, the Bench points out in para 33 that, “Subsequently, on 12 February 2024 an interim application was filed by the husband in disposed of, Writ Petition No.2048 of 2023. The said interim application was disposed of by this Court on 18 February 2024, with a liberty to approach the Family Court for any kind of modification, however certain interim relief were granted by this Court.”

Simply put, the Bench then reveals in para 34 that, “The husband thereafter preferred an interim application before the Family Court for modification of custody. The said interim application for modification was dismissed by the Family Court on 27 February 2024. The present writ petition challenges the order dated 27 February 2024. On account of non-availability of reasoning of Order dated 27 February 2024, the earlier protection granted by this Court was continued.”

Be it noted, the Bench notes in para 35 that, “By the impugned order dated 27 February 2024, the Family Court while dismissing the application for modification, came to the conclusion that the mother of the husband was a politician and due to her social work, she was unable to spend time/take care of the 9-year-old daughter. The petitioner himself was working in an I.T. Company. So also, his brother and brother’s wife were working as chartered accountant in a private firm. Hence, a maid is supposed to take care of the 9 year old daughter. As far as the wife is concerned, she is a doctor by profession, and she has taken up a flat for residence on Leave and Licence basis near the school of the 9 year old daughter. The mother of the wife, who is a home-maker was available to take care of the minor daughter along with a maid. The Family Court also held that the academic record of the minor daughter for the last one year was good. So also, the Court doubted as to who had written the alleged Notes/chits. Since the 9 year old daughter was meeting the husband on every weekend, as also the wife had doubted the handwriting of the 9 year old daughter on the said Notes/chits. So also, the Court had commented on the e-mails written by a lady called as ‘Neha’ on behalf of the Husband. The Court has also come to the conclusion that in the matter of a custody, the Court has to see the age, sex, and child emotional, physical and mental development along with educational development. Hence, based on these findings, the Family Court has rejected the application of modification of custody. Both the parties were directed by the Family Court to follow and adhere the order below Ex.83 dated 9 February, 2023.”

Do note, the Bench notes in para 36 that, “I have considered the arguments made by both the sides. There is no doubt that both the parents are working. There is no dispute that the mother of the husband is a political figure, who was earlier M.L.C. As per the newspapers/magazine articles, the mother of the husband is an aspirant of contesting upcoming election of Lok Sabha.”

What cannot be glossed over is pointed out in para 37 that, “It is a matter of record that the school authorities are communicating with the said mother of the husband (who is the grandmother of the 9 year old daughter) as regards the issues pertaining to the minor daughter, apart from the parents of the minor daughter. According to me, the school authorities have no reasons to inform about the issues relating to the minor daughter to the grandmother (who is a politician) when both the parents of the minor daughter are available. So also, one cannot forget that both the parents are well-educated and in fact the mother of the minor daughter is a doctor by profession.”

Quite significantly, the Bench propounds in para 44 that, “In any custody matter, what Court has to see is the welfare of the child. 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.”

It is worth noting that the Bench notes in para 45 that, “The submission made on behalf of the petitioner/husband as regards the adulterous behavior of the respondent/wife, according to me, these are the allegations which are made in the marriage petition by Husband before Family Court, filed in the year 2020. The said allegation has to be proved by leading evidence before the Family Court. Therefore, 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.”

Most remarkably, the Bench while citing recent and relevant case law expounds in para 46 that, “In the present case as regards, the allegations made by Husband are still to be proved. In the judgment of Vineet Gupta Vs. Mukta Aggarwal reported in 2024 SCC Online Del 678, it has been held that 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.”

Most significantly, the Bench mandates in para 47 that, “Adultery is in any case a ground for divorce, however the same can’t be a ground for not granting custody.”

As a corollary, the Bench directs in para 48 that, “Hence, this writ petition fails. No costs.”

Finally, the Bench then concludes by directing in para 48 that, “The petitioner is directed to hand over the custody of the minor daughter to the respondent wife by 21 April, 2024.”

In sum, we thus see that the Bombay High Court has made it pretty clear in this notable judgment that although adultery is a ground for divorce, it can’t be a ground to deny child’s custody. There can be just no gainsaying that all the courts must definitely comply with entirely what the Bombay High Court has held in this leading case and in similar such cases rule accordingly. No denying!

Sanjeev Sirohi, Advocate,

s/o Col (Retd) BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.