Denial of Child Custody

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Recently, the Bombay High Court held that adultery is in any case a ground for divorce, however the same can’t be a ground for not granting custody.

In this case, the Petitioner (husband) and the respondent (wife) got married on 18^th February 2010.
The husband is an IT professional, and the wife is a doctor by profession.
On 4^th January 2015 daughter was born out of the wedlock of the petitioner and respondent.
On 7^th December 2019 as per the case of the 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.
Subsequently, on 27^th January 2020 the husband filed divorce petition under Section 13 (1) (i-a) of the Hindu Marriage Act, 1955(HMA) before the Family Court at Mumbai, against the wife.
The Family Court dismissed the husband’s application in divorce petition seeking temporary custody of minor daughter aged 9 years now.
Thereafter, the writ petition was filed by the Husband before the Bombay High Court.
Dismissing the petition, the High Court directed the petitioner to hand over the custody of the minor daughter to the respondent.

Justice Rajesh Patil observed that adultery is in any case a ground for divorce, however the same can’t be a ground for not granting custody. Even if a woman is not a good wife, it does not necessarily mean that she is not a good mother.
It was further held that an adulterous spouse does not mean an incompetent parent and that allegations of adultery against such a parent cannot be the sole determining factor to deny the custody of the child to him/ her.

About:

Section 497 of the Indian Penal Code, 1860 (IPC) criminalized adultery.
It imposed culpability on a man who engages in sexual intercourse with another man’s wife.
Adultery was punishable with a maximum imprisonment of five years.
Women though were exempted from prosecution.
This section was inapplicable when a married man engaged in sexual intercourse with an unmarried woman.
The object of this section was to protect the sanctity of marriage.

This Section can be read as follows:
- Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. In such a case the wife shall not be punishable as an abettor.

A five-judge Constitution Bench of the Supreme Court led by then Chief Justice of India (CJI) Dipak Misra and comprising of current (CJI) D.Y Chandrachud and Justices A.M Khanwilkar, R.F Nariman and Indu Malhotra in the case of Joseph Shine v. Union of India (2018) held that adultery is not a crime and struck it off the IPC.
It however clarified that adultery would continue to remain a civil wrong and a valid ground for divorce.

As per Section 13(1)(i) of HMA any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party has, after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse.

This section deals with cruelty as a ground for divorce.
Prior to the 1976 amendment in the HMA, cruelty was not a ground for claiming divorce under the Hindu Marriage Act.
It was only a ground for claiming judicial separation under Section 10 of the Act.
By the 1976 Amendment, the Cruelty was made ground for divorce.
The word cruelty has not been defined in this Act.
Generally, cruelty is any behavior which causes a physical or mental, intentional or unintentional.
According to the law laid down by the Supreme Court in several judgments, there are two types of cruelty.
- Physical Cruelty - violent conduct causing pain to the spouse.
- Mental cruelty – spouse is inflicted with any kind of mental stress or has to constantly go through mental agony.
In Shobha Rani v. Madhukar Reddi (1988) the Supreme Court held that the word cruelty can have no fixed definition.
In Mayadevi v. Jagdish Prasad (2007), the Supreme Court held that any kind of mental cruelty faced by either of the spouses not just the woman, but men as well can apply for a divorce on grounds of cruelty.