A mother cannot be denied custody of her child merely because she has entered into adultery, the Punjab and Haryana High Court has observed.
A bench of Justice Sureshwar Thakur and Justice Sudeepti Sharma granted the woman custody of her two minor children and remanded the matter back to the family court, reported Live Law.
"The entering of any live-in relationship by any partner to a lawful marital relationship, which may have overtones of adultery, thus is not required to be working as an obstacle rather for the mother to receive the custody of her infant/nascent children, as therebys completest motherly love and affection becomes bestowed upon them,” the court said.
The couple were married in 2009 and the woman gave birth to two children in 2010 and 2013. However, they started living separately since 2016 after the woman accused her husband of harassment over dowry. The children, meanwhile, remained with their father.
A family court, which heard the matter, declined to give the custody of the minor children to the mother after it was alleged that she was living an adulterous life.
The woman moved the high court which, while hearing her petition, made some significant observations on whether adultery can be a ground to deny custody of children.
The court noted that in a patriarchal society, it is fairly common to cast aspersions on the moral character of a woman. “More often than not these allegations are made without any basis or foundation. Even assuming a woman is or has been in an extramarital relationship, the same by itself cannot lead to the conclusion that she would not be a good mother to deny her the custody of her child,” it said.
The court observed that a minor child needs the affection of both mother and father and even if the mother is in a live-in relationship, the affection of motherliness cannot be curtailed.
"The above is a dire biological need, and/or is a biological bondage inter se the mother and the minor children, which cannot be snapped, even if marital ties amongst the husband and the wife becomes severed or become snapped," it said.
The court further noted that adultery could have been considered if it was a petition for divorce.
A similar ruling was made by the Bombay High Court in April when it said “adultery is in any case a ground for divorce, however the same can't be a ground for denying custody of the child”.
Referring to several judicial precedents on the issue, the court reiterated that even if one is not a good wife, the same does not necessarily mean that she is not a good mother.