JUSTICE Rajesh S Patil, at the Bombay High Court, has dismissed a writ petition on April 12, 2024, in the case ABC (husband) v. XYZ (wife), holding that adultery is in any case a ground for divorce, however the same cannot be a ground for not granting custody. The petitioner-husband has been directed to hand over the custody of minor daughter to the respondent-wife by April 21, 2024. The petition in this case 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 years old daughter. As per the order of February 9, 2023, the Family Court, Mumbai had granted custody of 9 years 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 the WP 2048 of 2023 in the High Court. Initially after filing of the petition, when the matter was moved for urgent orders by the husband, the HC had refused to give any kind of relief to the husband. Admittedly, on February 24, 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 on alternate days. The writ petition filed by the husband was ultimately dismissed by this Court on July 21, 2023. Admittedly, the said order of July 21, 2023 attained finality as the husband did not challenge the said order.

 

The custody of the minor daughter remained with the wife from February 24, 2023 till February 9, 2024, for a period of roughly one year. On February, 9, 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 February 11, 2024 being a Sunday, she was supposed to go back to the residence of wife , however, the daughter did not return to the home of wife. Subsequently, on February 12, 2024, an interim application was filed by the husband in disposed of, Writ Petition No. 2048/2023. The said interim application was disposed of by this HC on February 18, 2024 with liberty to approach the Family Court for any kind of modification, however, certain interim relief were granted by the High Court. The husband thereafter preferred interim application before the Family Court for modification of custody. The said application for modification was dismissed by the Family Court on February 27, 2024. The present WP challenges the order of February 27, 2024. On account of non-availability of reasoning of the said order the earlier protection granted by this Court was continued. While dismissing the application for modification through the impugned order, the Family Court 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 with/ take care of the 9 year old daughter.

 

The petitioner himself was working in an IT company. So also, his brother and brother’s wife were working as Chartered Accountants 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 that 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’s emotional, physical and mental development along with educational development. Hence based on these findings, the Family Court had rejected the application for modification of custody.

 

Both the parties were directed by the Family Court to follow and adhere to the order of February 9, 2023. The HC has pointed out that it has considered arguments of both the sides. There is no doubt that both the parents are working. There is no dispute that mother of the husband is a political figure who was MLC earlier. As per the newspaper reports the mother of the husband is an aspirant to contest Lok Sabha polls. It is matter of record that the school authorities are communicating with the said mother of the husband (grandmother of the 9 year old daughter) as regards issues pertaining to the minor daughter, apart from the parents of the minor daughter. The school authorities have no reason to inform regarding the issues about the minor girl to her grandmother, when her both well educated parents are available. It has also come on record that while the Family Court granted interim custody of the minor daughter to the wife on February 9, 2023, and weekend access to the husband; on February 11, 2024, after a span of one year, the husband was not able to deliver back the custody of the girl to the wife. The said act continued for seven days and during that period, the girl did not attend the school.

 

The Family Court has doubted the handwriting on the alleged chits written by the minor daughter. According to the HC, it becomes a matter of concern, when the husband has brought on record certain chits, which according to him were written by the minor daughter on week days and which came in his custody through a friend of the minor daughter. It is highly unbelievable that the 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. According to the HC, in any custody matter, the court has to see the welfare of the child. In this case, the child is a minor girl of pre-puberty age. There is no reason or change in the circumstances that the custody should be changed from the wife to the husband. The allegations of adultery made by the husband are yet to be proved therefore, based on those allegations, the doubt as to whether the custody can be given to the wife will have no bearing . There is no doubt that not a good wife is not necessarily a bad mother.