An adulterous spouse is not equivalent to an incompetent parent and an extramarital affair of a person cannot be the sole determining factor to deny them custody of a child, the Delhi High Court has ruled.

The high court said points for consideration in divorce proceedings and custody matters may be co-related but they are always “mutually exclusive”.

A bench of Justices Suresh Kumar Kait and Neena Bansal Krishna said even when adultery by a parent has been proved, it cannot disentitle him or her of the custody of children unless there is something more to prove that such adulterous act has affected the welfare of the children.

“’Adulterous spouse’ is not equivalent to ‘incompetent parent’. Points for consideration in divorce proceedings and custody matters may be co-related but are always mutually exclusive. Any adulterous relationship or extramarital affair of either spouse, cannot be the sole determining factor to deny custody of a child, unless it is proved that the adulterous relationship in itself is pernicious/ detrimental/ injurious to the welfare of the child,” the bench said.

The court was hearing cross appeals filed by a man and his wife against the family court order granting them joint custody of their two minor daughters aged 12 and 10 years.

The high court said there was no reason to interfere with the family court order granting them joint custody of the children.

While the woman alleged her husband was erratic and irresponsible, and had run away to some ashram and unknown places abandoning her and the two children for nearly two-and-half years, the man claimed her guardianship petition was a counterblast to the divorce petition and criminal complaint he had filed on grounds of cruelty and adultery.

The woman claimed the children were kidnapped by her husband’s sister and she was ousted from her matrimonial home. She alleged she was not even allowed to talk to her daughters which prompted her to file a custody petition.

The man alleged his wife was irresponsible as she did not take care of the children and spent most of her time and energy on her illicit relationship. He argued his wife's adulterous relationship disentitled her of the children's custody.

The high court said though it has been proved that the mother had an extra-marital affair, this itself cannot be the ground to deny her their children's custody unless there is something more to establish that her interests elsewhere impacted their welfare.

It observed the evidence on record reflected that the mother frequently spent her time with the third person “in whom she had special interest” but there was not an iota of evidence to show that she, in any way, had failed to take care of the needs of the children.

“The respondent/ mother may not have been a faithful or a good wife to the appellant/ husband, but that in itself is not sufficient to conclude that she is unfit to have the custody of the minor children, especially when no evidence has been brought on record to prove that she in any manner, neglected to take care of the children or that her conduct has resulted in bad influence of any kind, on the children,” the court said in the order.

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