The Bombay High Court Believes that unfounded allegations of adultery against a woman cannot be a reason to deny her custody of her children.

It also noted that allegations of adultery cannot be proven by a sworn affidavit and that it is important that the court allow the parties to provide full evidence before deciding the custody issue on that ground.

“This is completely illegal. If the full evidence has not been brought, the court did not conclude that the allegations of adultery are proven, just because some documents have been presented cannot be considered evidence and then a conclusion can be drawn that the wife / mother is not entitled to custody. It must be assumed that allegations of adultery by the husband have not been proven in this matter, “said Judge VV Kankanwadi watched.

The High Court also found that the trial judge’s chosen procedure was itself wrong on three counts:

(i) The judge should have given a reasonable opportunity to take the evidence on both sides. The point that could not have been decided on the basis of affidavits alone was taken into account in this way.

(ii) There was no mandatory certification under Section 65-B of the Indian Evidence Act in relation to mobile transcriptions and photographs submitted to court by Respondent for allegations of adultery.

(iii) The wife was not given an opportunity to cross-examine the husband on charges of adultery.

“Everything stated in the affidavit has been called gospel truth by the learned trial judge, particularly that of the accused’s husband,” the High Court noted.

background

The petitioners applied for custody of their two children – a daughter aged 6 and a son aged 2. She said the court denied her custody without considering the legal aspects of the matter.

The parties’ son is only two years old and, subject to Section 6 (a) of the Hindu Minority and Guardianship Act, provides custody of the mother’s child under five as she is considered the natural guardian, she added.

It has also been suggested that even though the girl is over five years old, she should still be placed in the mother’s care. The learned trial judge’s approach of interacting with the girl and coming to the conclusion that she has no desire to go with the mother herself has gotten wrong.

The Respondent argued that the Complainant was leading an adulterous life and could not look after the children as this would affect the children’s welfare. He also cited the trial judge’s interaction with the daughter, in which she expressly showed no willingness to go with her mother. It was also alleged that the applicant was ill-treated and that custody was rightly denied.

Results

At the outset, the court found that the procedure chosen by the district judge appears to be incorrect. “Undoubtedly, both parties had stated in front of him that they did not want to bring any evidence, and it seems that both parties relied on their affidavits – it could have given both sides the opportunity to cross-examine each other,” said the High Court fest.

It added

“There was no opportunity for the wife to cross-examine the husband and therefore, although the fact of adultery is alleged and this has not been proven by solid and conclusive evidence from the husband, the trial judge should not even have considered it for a sentence too.“

When asked that the daughter expressed her unwillingness to go with the mother, the High Court said: “A child of 6 years old may be intelligent so that they will answer all the questions that have been asked, but in terms of the choice they should make between the father and mother, which is a complex question in itself, ordinary intelligence should alone not to be considered.“

When asked that the applicant attacked the children, the court finally found that the aforementioned incidents had only occurred twice or three times, possibly for the best interests of the child. The order said

“More important point to keep in mind is that in any case, if the mother finds that the child is doing something wrong, at some point she may attack due to anger, but this would be with the intent that the child should not commit such wrong in the future. No doubt, it seems that the girl is affectionate towards the grandparents, and it is obvious. The grandparents always love their grandchildren and they pamper them like anything else. They give moral upbringing and good treatment in equal measure so that the child may develop into a good person. It is commonly observed that grandparents protect their grandchildren more than parents of children. If the children’s parents scold or beat them for any reason, the child immediately goes to the grandparents for comfort. Therefore, the comfortable point is definitely affected, the girl would have said that she was more comfortable in this house. However, the fundamental fact is whether the girl who is 6 years old was better able to make the choice.“

In the light of these observations, the case will be referred back to the court of first instance, which has been charged with giving both parties an opportunity to be heard in order to substantiate their respective allegations and resolve the case on the merits. In the meantime, custody of both children is transferred to the mother until the final disposition (with the father’s visitation right).

In a similar case in which the husband was unable to substantiate allegations about the wife’s character, the Punjab & Haryana High Court ruled: “Even if a woman is or has been in an extramarital relationship, that alone cannot lead to the conclusion that she would not be a good mother to deny her custody of her child. “

Case Title: Ratnamala Pandurang Zate v. Pandurang Udhav Zate

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