Adultery can be a ground for divorce but not for granting custody of a child, the Bombay High Court said while granting custody of a nine-year-old girl to her mother.

A single bench of Justice Rajesh Patil on April 12 dismissed the petition filed by the man, son of a former legislator, challenging an order passed by the family court in February 2023 granting custody of his daughter to his estranged wife.

The couple tied the knot in 2010, and their daughter was born in 2015. In 2019, the woman claimed that she was removed from their home. The petitioner, however, alleged that his wife had left of her own volition.

The petitioner’s counsel, Indira Jaising, submitted to the court that the woman had multiple affairs, and hence, it would not be proper to hand over the custody of the child to her.

Justice Patil noted that the allegations of adulterous behaviour would have no bearing or doubt while deciding the matter of the child's custody.

“Not being a good wife does not necessarily mean she is not a good mother. Adultery can be a ground for divorce, however, the same cannot be a ground for not granting custody,” the court observed.

The man, in his plea, claimed that it was in the child’s best interest to live with him and his parents, as she was not happy with her mother and there were some behavioural changes in her.

Jaising told the court that the authorities at the girl's school had written emails to the petitioner's mother, raising concerns about her behaviour.

The high court, however, refused to accept this and questioned why the school got in touch with the paternal grandmother when the parents were well-educated.

It noted that the petitioner’s mother was a former legislator aspiring to contest the Lok Sabha elections.

“According to me, the school authorities have no reason to inform about the issues relating to the girl to the grandmother, who is a politician, when both the parents of the child are available, well-educated, and in fact, the mother of the child is a doctor,” the court said.

Justice Patil noted that the girl was only nine, which is a pre-puberty age, and in such custody matters, the court must consider the welfare of the child as paramount.

The girl was taken care of by her maternal grandmother, and her academic record during her custody with the mother was also good, he said.

“Therefore, according to me, there is no reason to change the custody from the wife to the husband,” the court said.

The bench directed the petitioner to hand over his daughter's custody to the wife by April 21.

In 2020, the woman lodged a police complaint against her husband and her in-laws, alleging harassment, assault, and criminal intimidation. She claimed that her daughter was taken away from her.

The woman also filed a complaint under the Domestic Violence Act before a magistrate’s court and an application before the family court seeking custody of her daughter.

The man also filed a petition in the family court seeking divorce from the woman and custody of the daughter.

In February 2023, the family court handed over custody of the girl to the mother and allowed access to the father.

However, in February this year, when the girl went to her father’s residence for weekend access, he refused to hand the child over to the mother.

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