Adultery of parent cannot be sole ground to deny custody of child to him/ her: Delhi High Court

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The Delhi High Court recently held that an ‘adulterous spouse’ does not mean an ‘incompetent parent’ and allegations of adultery against such parent cannot be the sole determining factor to deny the custody of the child to him/ her.

A Division Bench of Justices Suresh Kumar Kait and Neena Bansal Krishna said even when adultery is proved on part of a parent, it cannot disentitle him/her from the custody of children unless there is something more to prove that such adulterous act has affected the welfare of the children.

““Adulterous Spouse” is not equivalent to “Incompetent Parent”. Points for consideration in Divorce proceedings and custody matters may be correlated but are always mutually exclusive. Any adulterous relationship or extramarital affair of either spouse, cannot be the sole determining factor to deny custody of a child, unless it is proved that the adulterous relationship in itself is pernicious/detrimental/injurious to the welfare of the child,” the Court held.

Justice Suresh Kumar Kait and Justice Neena Bansal Krishna
Justice Suresh Kumar Kait and Justice Neena Bansal Krishna
The Court made the observation while dealing with cross-appeals filed by husband and wife against the family court order granting them joint-custody of their two minor daughters.

In this case, the wife had alleged that the husband was erratic and irresponsible who ran away to some ashram and unknown places abandoning her and the two daughters for nearly two-and-half years.

She asserted that the children were kidnapped by her husband’s sister and she was ousted from her matrimonial home and not even allowed to talk to them which led to her filing the custody petition.

Meanwhile, the husband claimed that the guardianship petition was a counter blast to the divorce petition filed by him on grounds of cruelty and adultery and the criminal complaint filed by him.

He alleged that the mother was irresponsible as she did not take care of the minor daughters and invested most of her time and energy in her illicit relationship with her paramour.

It was vehemently argued that the adulterous relationship of the wife disentitled her to the custody of children.

The Court considered the case and observed that the evidence on record reflected that the mother frequently spent her time with the third person “in whom she had special interest” but there was not an iota of evidence to show that she, in any way, had failed to take care of the needs of the children.

“The respondent/mother may not have been a faithful or a good wife to the appellant/husband, but that in itself is not sufficient to conclude that she is unfit to have the custody of the minor children, especially when no evidence has been brought on record to prove that she in any manner, neglected to take care of the children or that her conduct has resulted in bad influence of any kind, on the children,” the Court said.

It noted that both the parents bein g employed in government service are similarly placed to look after the welfare of children.

The Court, therefore, found no reason to interfere with the family court order granting joint custody of the children.

Advocates Rashmi Malhotra and Shalinder Saini appeared for the husband.

The wife was represented by advocates SD Singh and Shweta Sinha.

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