A Single Instance Of Adultery Won’t Disentitle The Wife To Custody Of Her Child: Bombay High Court

Case title:

Mr Abhishek Chavan V Ms Gauri Chavan.

Date of Order:

April 19, 2024;

Bench:

Hon’ble Justice RAJESH S. PATIL.          

Parties:

Appellant: Mr. Abhishek Chavan, petitioner present through (V.C).              

Respondents: Ms. Gauri Chavan, respondent present in person

Subject:  

The case revolves around the custody of a minor child. Both the parents along with their dispute fight over the custody of their daughter. Different reasons like the minor’s dyslexia and her mother’s affairs were alleged (by the appellant) to gain custody. Whereas, the opposite side countered it by mentioning manipulation was done by the appellant to his daughter against her mother and many other similar instances like these. It was stated that the grounds for custody cannot be denied if adultery happened. Ultimately, the writ issued by the husband was dismissed and he was directed to hand over the custody to the wife.

IMPORTANT PROVISIONS

HINDU MARRIAGE ACT:

Section 13(1)(ia): The husband filed for a divorce(deals with grounds of divorce).

Section 26: Deals with the custody of the children.

INDIAN CONSTITUTION:

Article 227: Gives the High Court the power of superintendence over other lower courts.

OVERVIEW (Brief Facts)

• An assailed correctness was requested of the judgement passed by the Family Court when it dismissed the divorce petition on 27 February 2024 which was filed by the husband and under (exhibit-147 ) a temporary custody of a minor daughter aged 9 years(back then) was requested.
• The petitioner and the defendant (referred to as husband and wife here respectively).
• The husband was an IT professional. Whereas, the wife was a doctor (they were married on 18 February 2010). After the wedlock, a daughter was born to them, on 4 January 2015.
• But later, in the year 2019 as per the wife, she was evicted from their matrimonial house and the custody of their daughter was given to his father.
• Whereas, the complaint by the husband, her wife left the matrimonial home on her own.
• The wife lodged a complaint against the husband on Jan 2, 2020. The charges of assault by the husband were also pressed by the wife. 
• An FIR against the husband, under sections 498-A, 377, 354, 323, 506, 504 which are read along with Section 34 of the Indian Penal Code.
• Not only this, the wife on Jan 22nd 2020 filed a complaint under the Domestic Violence Act before the JMFC(Borivali). Along with this, an application for the custody of the minor was requested.
• Similarly, on Jan 27, 2020, filed a complaint for divorce petition under Section 13 (1) (ia) of the Hindu Marriage Act.
• It was found that the pandemic (COVID) hit in the month of March, and the custody of the child was still with the father. The police on Sept 1 2020 filed a ‘B summary’ in the complaint filed by the wife.
• This B summary was challenged by the wife via the means of a Protest Petition and a written counterclaim was also filed by the husband before the Family Court at Bandra.

ISSUES RAISED

The core issues that were raised in this case were related to:

• Who should be provided with the custody of the child who is a minor?
• To what extent are the allegations made, true?

ARGUMENTS ADVANCED BY THE APPELLANT

• The appellant's counsel contended that the custody matters should be in the best interest of the child.
• An email about good faith was sent to the paternal grandmother of the child, by the child’s school.
• The court’s earlier order was not challenged by the husband as he wanted the child to bond with the mother, which eventually did not happen in 1 year.
• It was submitted that the child had dyslexia.
• Also, in the impugned orders, the sent emails were not discussed.
• It was emphasized that safety should be of utmost importance as the custody is never final.
• It was submitted that the child was uncomfortable with the mother, as she had multiple affairs which would have impacted the child adversely.
• It was submitted that the wife was taking advantage of the fact that the mother of the husband was a member of a political party.
• It was submitted that the separation happened in 2019, and the daughter stayed for only one year with the father.

ARGUMENTS ADVANCED BY THE RESPONDENT

• The arguments made by the respondents were that the husband tried to manipulate the daughter against the mother.
• The daughter seemed to repeat the words taught by the husband, which implies she escaped custody.
• It was stated that the political status of the mother of the husband would have influenced the authorities of the school to send an email
• It was also stated that the allegations of having multiple affairs were not proven and generic statements like these would not be enough to allow the interim custody. It was submitted that the Writ Petition should be dismissed as it lacks merits.

 JUDGEMENT ANALYSIS 

• It was found out that earlier, [based on aforementioned facts] the Wife after f B-Summary was filed made an application before the Family Court, for granting an interim custody of the child. The Family Court allowed this access to the wife for four days of minor daughter from 1.00 p.m. to 6.00 p.m. and on a further dated order allowed her virtual custody (virtual access) from 7 to 8 P.M.
• The child’s custody was allowed to the mother on different occasions like Diwali & Christmas etc and even once on her birthday.
• The Family Court allowed the access of the minor to the wife every 2nd and 4th Friday - Sunday. It was urged by the husband to cancel the virtual meeting as it was stressful for the child, to which the court too agreed and gave the above criteria.
• As the virtual meeting was cancelled, the wife, seeking relief, filed a Writ Petition before the High Court. Which she later withdrew.
• Later, when the Family Court rejected the interim custody application filed by the wife. This was challenged by the wife by way of a Writ petition (in the High Court).
• The High Court after considering the plea on 16 December 2022, allowed the Writ Petition and order remanding the matter back to the Family Court, to decide the interim custody.
• On remand, the court heard both parties, the Family Court ordered interim custody of the daughter, to the wife, physical access to the husband, with alternate days virtually every weekend. (This became the total opposite of what was happening before).
• Due to this judgement, the husband filed a writ petition.
• Later, on March 3rd ’23, the matter moved to the High Court on the grounds of interviewing the daughter as it was urged by the husband that she may commit suicide. However, this plea was rejected.
•  After continuous efforts by the husband to interview the daughter and subsequent rejections by the court, one day the daughter did not return from the husband’s house i.e. on 25 June 2023.
• Therefore, on 26 June 2023, the Writ Petition was presented (in H.C.) and the child was interviewed in the chambers.
• After hearing the writ petition, the H.C. dismissed it and granted the custody of the child, to the wife as per(exhibit-83) on 21 July 2023.
• Similarly, on 11th Feb 24 the daughter did not return from her husband’s home. Subsequently, on 12th Feb, a modification was requested of the issued custody order via an interim application. This case was again referred to the Family Court and eventually, the court rejected the plea of the husband.
• The husband again sought an interim order on Feb 28 but did not get any immediate response.
• He filed for a writ and pleaded for interim protection until the detailed order of the Family Court was released. (which was granted).
• The Family Court has rejected the application of modification of custody later based on age, sex, emotional, physical and mental development along with educational development.
• It was found that the academic record of the minor during her custody with her mother was good. 
•  It was stated by the court that it is not necessary that a bad wife would be a bad mother too. It was pressed that if the allegations of extra affairs were to be proven then only any actions could be taken.
• It was mentioned that adultery is a ground for divorce, but cannot be the one to grant or refuse custody.
• Hence, the writ was dismissed.
•  The petitioner was directed to hand over the custody of the minor to the wife by 21 April 2024.

CONCLUSION

In this judgement, the High Court considering the welfare of the child grants custody to the wife, pressing on the fact that the claims of the husband lacked any solid proof. Even if the character of the wife was in question, the custody was granted to her as the court valued her well-being (academically). It was stated that the grounds for custody cannot be denied if adultery happened.  Ultimately, the writ issued by the husband was dismissed and he was directed to hand over the custody to the wife.