Gujarat High Court refuses child custody to father despite allegations against wife’s character, her extramarital affairs

The Gujarat High Court recently refused to overturn a Family Court ruling denying the petitioner-claim father’s for interim custody of his two children, aged 17 and 12, [Shehjada Hanifbhai Patel v Bilkis].

Justice Ashokkumar C Joshi considered; the claims of the wife’s extramarital activities and concluded that there was nothing on record to suggest that; it was unsafe for the children or that their lives were in jeopardy.

The Family Court had opined that; there was insufficient evidence to substantiate the allegations against the wife’s character, according to the single-judge.


The petitioner had approach to the High Court, said that; the Family Court had failed to consider the respondent’s extramarital activities. The petitioner’s learned lawyer argued that the learned Court below’s impugned ruling is illegitimate, unfair, perverse, and contrary to the facts and evidence on record. He argued that; the learned Family Judge failed to examine the material fact that; the respondent in this case has extramarital affairs with other people, which also proven by compelling evidence, but that;  the learned Family Judge did not take that into account.

When the respondent abandoned the petitioner in 2015, the minor children lived with the petitioner for nearly two years, according to the learned lawyer for the petitioner. Following that, the respondent against began living with her husband after they reached an agreement. However, a disagreement arose between them in 2019, prompting the petitioners to file a FIR against the respondent for violating Sections 323 and 294(B) of the Indian Penal Code, 1860. (the IPC).

As a result of the respondent’s behavior, it is not appropriate for her to have custody of the children.


However, The Supreme Court decision in Shalini Shyam Shetty v. Rajendra Shankar Patil, the Court stated that in exercising its superintendence function, the High Court could not intervene to remedy merely legal or factual errors or just because another viewpoint was proper.

The scope of interference under Article 227  examined in depth in the ruling. The Supreme Court has ruled that an erroneous and frequent use of this power would be detrimental, robbing extraordinary power of its vigour and energy.

As a result, Justice Joshi stated that a petition under Article 227 could not be disguised as an appeal.

Based on the facts of the case, the Court determined that the respondent was strictly adhering to the petitioner’s visitation rights.

As a result, the High Court concluded that the Family Judge had not erred, and the plea was rejected.

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