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. {Para 45}
46. 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.
47. Adultery is in any case a ground for divorce, however
the same can’t be a ground for not granting custody.
48. Hence, this writ petition fails. No costs.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.4060 OF 2024
Petitioner V/s. S
CORAM : RAJESH S. PATIL, J.
Dated: 19 APRIL 2024.
1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.
7. Subsequently, on 27 January 2020 the husband filed
divorce petition under Section 13 (1) (ia) of the Hindu Marriage
Act, 1955 before the Family Court at Mumbai, against the wife. In
the month of March 2020 the pandemic started and virtually
everything was closed down. The custody of minor daughter
remained with the husband. On 1 September 2020 the police filed
“B” summary in the police complaint filed by the wife. The said
order of “B” summary was subsequently challenged via Protest
Petition by the wife. On 9 November 2020 the wife filed her
written statement as well as counter-claim in the divorce
proceedings filed by the husband before the Family Court at
Bandra Mumbai.
8. The wife thereafter made an application before the
Family Court for granting interim custody of minor daughter
during the pendency of the divorce petition filed by the husband.
And a prayer of access to minor daughter was sought. By an order
dated 12 February 2020 the Family Court, Bandra Mumbai granted
access to wife, for four days of minor daughter from 1.00 p.m. to
6.00 p.m.
9. By further order dated 18 May 2020, the Family Court,
Bandra Mumbai passed an order thereby granting virtual access of
minor daughter, from 7.00 p.m. to 8.00 p.m. on alternate days.
10. On 4 August 2020 the Family Court, Bandra Mumbai
did not grant physical access due to lock down, however, the
virtual access has granted by the Court by an order dated 18 May
2020 continued, and it was directed that the said virtual access
should be recorded.
11. The Family Court on 9 November 2020 granted
physical access of minor daughter to wife, from 14 November 2020
to 17 November 2020. The said order was passed by consent, as it
was Diwali Vacation.
12. Thereafter, on 19 December 2020 the Family Court
passed an order, with regard to Christmas Vacation, allowing the
wife to have physical vacation of minor daughter from 24
December 2020 to 1 June 2021. And so also access on 4 January
2021, on birthday of minor daughter.
13. On 6 February 2021 the Family Court Mumbai, passed
an order thereby granting weekend access of minor daughter on
2nd and 4th Friday to Sunday, of every month to the wife, and the
virtual access of alternate days, was cancelled as the husband had
objected to it on the ground that the virtual access was stressful for
the daughter.
14. Since the virtual access cancelled, the wife challenged
the order dated 6 February 2021, passed by the Family Court,
Mumbai by way of Writ Petition No.962 of 2021 before this Court.
In the meanwhile, the wife filed an application (Exhibit 83) for
grant of interim custody, before the Family Court Mumbai,
Consequently, the wife withdrew the Writ Petition No.962 of 2021,
with liberty to persue the application (Exhibit-83) before the
Family Court.
15. On 17 May 2021 the Family Court Mumbai granted
summer vacation access of daughter, to wife for the period from 18
May 2021 to 31 May 2021.
16. Thereafter, on 9 May 2022 the Family Court Mumbai
by its order rejected the interim custody application filed by the
wife, however, the summer vacation access was handed over to the
wife from 13 May 2022 to 27 May 2022. The said order passed by
the Family Court challenged by way of a Writ petition NO. 9434 of
2022 filed by the wife. After hearing of both the parties, this Court
by its order dated 16 December 2022, allowed the Writ Petition of
the wife, thereby remanding the matter back to the Family Court,
to decide the interim custody application (exhibit-83) afresh.
17. On remand, the Family Court Bandra Mumbai, heard
both the parties and by its order dated 9 February 2023, granted
interim custody of daughter, to the wife, and every weekend
physical access to the husband, with alternate day
virtual/telephonically access to the husband. The said order dated
9 February 2023 passed by the Family Court was challenged by the
husband by way of Writ Petition No.2048 of 2023 filed on 16
February 2023. This Court thereafter did not pass any interim
orders in Writ Petition No.2048 of 2023, and when the matter was
called out on 17 February 2023 and on 24 February 2023, and the
matter was adjourned to 27 March 2023.
18. Thereafter, the husband complied with the order
passed by the Family Court and handed over the custody of the
minor daug on 24 February 2023, to the wife.
19. Thereafter, on 3 March 2023 on the submissions of
advocate appearing for the husband, the papers and proceedings
were moved in the chambers of this Court. So also, as request
made to this Court for interviewing the minor daughter on the
grounds that she might commit suicide was rejected by this Court.
20. Again on 28 March 2023 the oral application was made
on behalf of the husband that the minor daughter should be
interviewed. Again this Court rejected such an application made on
behalf of the husband. The husband thereafter preferred an
interim application for seeking a prayer that the minor daughter
should be interviewed. Thereafter, on the weekend when minor
daughter had meet the husband and was supposed to go back to
the wife on 25 June 2023, she did not go back to the wife’s home.
On 26 June 2023 the Writ Petition No.2048 of 2023 was
mentioned before this Court when minor daughter was present in
the Court hall. This Court interviewed the minor daughter in
chamber. Thereafter, the Writ Petition no.2048 of 2023 was taken
up for hearing by this Court and by its order dated 21 July 2023,
this Court dismissed the Writ Petition filed by the husband thereby
confirming the order granting the custody of minor daughter, to
the wife passed in Application (exhibit-83).
21. 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.
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, did not return to home of the wife.
22. On 12 February 2024 an interim application No.1587
of 2024 was preferred by the husband seeking modification of
order passed by this Court. The said interim application was
moved before me. However, since interim application sought
modification order passed by the earlier bench, the parties were
directed to approach the bench of this Court which passed the
earlier order dated 21 July 2023. By an order dated 16 February
2024 the interim application No.1587 of 2024 was disposed of,
directing the parties to approach the Family Court. The husband
thereafter approached the Family Court. The Family Court by its
order dated 27 February 2024 rejected application (Exhibit-147)
filed by the husband seeking modification.
23. Thereafter, an application was moved before this Court
on 28 February 2024 seeking continuation of protection granted in
interim application no.1587 of 2024. However, no orders were
passed on the oral request made on behalf of the husband.
24. On 29 February 2024 the present writ petition filed by
the husband and since the reasoned order passed by the Family
Court was not available, a request was made that till the time the
reasoned order is made available the interim protection be
granted. Hence, I had granted protection to the husband since the
reasoned order was not available.
25. Ultimately the reasoned order was available on 13
March 2024. Thereafter, an amendment was made to the present
writ petition by enclosing the copy of the reasoned order to the
writ petition. Counsels shortly thereafter made their submissions.
SUBMISSIONS
26. Ms. Indira Jaising, learned Senior Advocate appeared
on behalf of the husband, and made her submission :
(i) Ms. Indira Jaising, submitted that in the custody matter
what has to be seen is the best interest of the child.
(ii) Ms. Indira Jaising, submitted that email was written in
good faith by school authority to the paternal grandmother and
the husband, regarding the behavior of the minor child.
(iii) Ms. Jaising submitted that her client had not
challenged the order passed by this Court on 21 July 2023 passed
by the High Court, as her client was open to the suggestion made
by the Court, allowed to jell the child with mother. She submitted
that even after one year the child did not jell with the mother
which can be seen from the notes handed over by the child to the
school and also to one her friend to be given to her father.
(iv) Ms. Jaising submitted that the minor daughter was
suffering from dyslexia.
(v) Ms. Jaising submitted that in the impugned order there
is no discussion about the emails written by the school.
(vi) Ms. Jaising submitted that safety of the child should be
prime importance. She submitted that the order of custody is never
final.
(vii) She submitted that the report of minor daughter,
suggest the child is not comfortable in the custody of her mother.
Ms. Jaising submitted that the wife had multiple affairs. She
submitted that hence, the custody to be granted to the mother of
minor daughter, would not be proper.
(viii) Ms. Jaising submitted that the respondent (wife) is
taking advantage of the fact that the mother of the husband is a
member of political party.
(ix) Ms. Jaising pointed out the provisions section 26 of the
Hindu Marriage Act as regards the custody. She emphasized the
words “consistently” with their wishes.
(x) Ms. Jaisingh submitted that from the month of
December 2019 the husband and wife were staying separately and
except for a year the custody of the minor daughter has remained
with the husband.
(xi) Ms. Jaising referred to the Supreme Court Judgment of
Nil Ratan Kundu & Anr. V/s. Abhijit Kundu reported in (2008) 9
SCC 413 .
(xii) Ms. Jaising submitted that the writ petition deserves to
be allowed.
27. Mr. Kulkarni, learned counsel appeared on behalf of
the wife and made his submission :
(i) Mr. Kulkarni submitted that the husband has always
tried to poison the minor daughter which can be seen by at least
three documents vis a vis paragraph No.15 of the judgment and
order passed by this Court on 21 July 2023, Paragraph Nos. 1 and
3 of order dated 16 October 2022 passed by the Family court and
the Paragraph No.5 of order of the Family Court dated 6 February
2021.
(ii) Mr. Kulkarni submitted that the husband had gone to
such a extend that the daughter started repeating the words as
taught to her by husband that she has been escaped from the
custody matter, as generally mentioned “Shivaji Maharaj escaped
from the Agra Fort”.
(iii) Mr. Kulkarni also referred to paragraph No.51 of the
order dated 27 February 2024 passed by the Family Court.
(iv) Mr. Kulkarni submitted that the mother of the husband
is a big political figure in the State of Maharashtra, who was
earlier a member of Legislative Council. He submitted that the
school authorities have been influenced by the mother of the
husband which can bee seen from the emails addressed by the
school authorities to the mother of the husband and further copy
of the email being addressed to the husband. The said emails were
addressed by the school authorities to ‘madam’. He submitted that
there was no reason to school authorities to right any kind of
email’s to the Mother of the husband when the husband, who is
the father of the minor daughter was available to correspond with
(v) Mr. Kulkarni also pointed out that the emails of the
husband written by a lady called as “Neha”. He submitted that the
said lady “Neha” though according to the other side, is working as
a staff of mother of the husband, had no reasons to write emails on
behalf of the husband, at 9.00 p.m. on Sunday. He submitted this
itself shows that the said emails addressed by the husband were
actually prepared by somebody else.
(vi) Mr. Kulkarni submitted that there is no explanation as
to how alleged notes were written by the daughter, came in the
custody of the husband. He submitted that though the story is now
put up on behalf of the husband that wrote notes and gave it to
her friend and the said friend gave it to her mother who in turn
gave it to the father of the minor daughter i.e., the husband
herein. He submitted that it is highly unbelievable story, as the said
story was never put up before the Family Court. He further
submitted that who was the name of classmate of minor daughter
to whom the note was submitted, has not been disclosed, neither
name of the mother of the said classmate has been mentioned
even today. He submitted that it is highly unbelievable that minor
daughter when was granted access to the husband on weekend,
during the week days she used to write the notes to her father
petitioner herein.
(vii) Mr. Kulkarni submitted that as far as the allegations of
the wife having multiple affairs the same have to be proved by the
husband. He submitted that the generic statements made in the
Divorce Petition would not be enough to not allow the interim
custody of minor daughter aged 9 years who is about to attain
puberty.
(viii) Mr. Kulkarni submitted that there is no merits in the
Writ Petition and the same should be dismissed with cost.
ANALYSIS AND CONCLUSION :
28. 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.
29. 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.
30. 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.
31. 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.
32. 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.
33. 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.
34. The husband thereafter preferred 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.
35. 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.
36. 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.
37. 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.
38. It is also come on record that while the Family Court
granted interim custody of the minor daughter, to the wife on 9
February, 2023, and weekend access to the husband; on 11
February, 2024, i.e. after a span of one year, the husband, was not
able to deliver back the custody of daughter to the wife. The said
act of the husband continued for a period of around seven days. In
the said seven days, the minor daughter did not attend school.
39. The academic record of the minor daughter during her
custody with her mother, 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.
40. One cannot forget that the minor daughter is only 9
year old which can be called as a pre-puberty age. The fact that
one lady called as ‘Neha’ has written letters to the wife on behalf
of Husband, submitting therein that the minor daughter is safe in
her custody, also raises an eyebrow.
41. The Family Court has doubted the handwriting on the
alleged chits written by the minor daughter. According to me, it
becomes a matter of concern when the husband has brought on
record certain chits which according to him was written by the
minor daughter on week days and which came in his custody
through a friend of the minor daughter. According to me, it is
pertinent to note that though in the week days, the daughter was
in the custody of the wife, and on weekends i.e. from Friday to
Sunday night, the daughter was granted access to the husband.
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. It is highly unbelievable that minor
daughter used to be with her father from Friday evening to Sunday
evening, and on week-days she used to write Notes/Chits to her
father.
42. A reference was made by Ms.Jaising, learned senior
counsel to the judgment of Supreme Court in the matter of Kundu
(supra). The fact in the judgment of the Kundu (supra) was that
the matter pertains to the Guardians and Wards Act, 1890. In the
said proceedings, the mother of the minor had already died.
According to me, the custody of the minor in a Guardians and
Wards Act is on complete different footing than under the Hindu
Marriage Act. Even in Kundu (Supra), Supreme Court has laid
down principles of law that while determining the question as to
who should be given custody of a minor child, the paramount
consideration is the ‘welfare of the child’ and not rights of the
parents under a statute for the time being in force.
43. In the present proceedings, the application for custody
was initially filed by the wife under section 26 of the Hindu
Marriage Act. The Family Court considering the welfare of the
child granted custody to the wife and this Court confirmed the said
judgment and order passed by the Family Court by its order dated
21 July, 2023. After a period of one year, modification to the said
order passed by the Family Court was made by the husband. The
Family Court has rejected the said application filed by the husband
with a reasoned Order. Therefore, the fact in the judgment of
Kundu (supra) are quite different than the present proceedings.
44. 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.
45. 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.
46. 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.
47. Adultery is in any case a ground for divorce, however
the same can’t be a ground for not granting custody.
48. Hence, this writ petition fails. No costs.
49. The petitioner is directed to hand over the custody of
the minor daughter to the respondent wife by 21 April, 2024.
(RAJESH S. PATIL, J.)
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