The Bombay high court has held that Indian statutory framework governing child custody and guardianship does not recognise the concept of joint parenting, and that the welfare of the child, rather than parental rights, must remain the paramount consideration in custody disputes.
A single-judge bench of Justice Gauri Godse said courts must exercise their discretionary powers based on a child’s entitlement to the love, affection and care of both parents, rather than on parental rights. The court made the observations while setting aside a Mumbai Family Court order granting an estranged couple joint parenting and 50:50 vacation time with their 14-year-old son.
“There is no compelling equal parenting, and the legal foundation in Indian law is the welfare of the minor child and therefore parents’ legal rights can never override the child’s welfare,” Justice Godse said.
The couple, both residing in different places in Powai, had secured a divorce by mutual consent after filing consent terms, which covered residential arrangements for the wife and the 14-year-old boy and monthly maintenance for him. Under the consent terms, the child was to ordinarily reside with his mother and spend half of his school vacations in the company of his father.
But later, disputes arose between them over the custody of their only child and, on September 20, 2024, the Family Court decided the mother’s custody plea, holding that both parents were entitled to joint parenting of the child and 50:50 vacation time, with the child’s ordinary residence with the mother from the next school academic year.
{{/usCountry}}But later, disputes arose between them over the custody of their only child and, on September 20, 2024, the Family Court decided the mother’s custody plea, holding that both parents were entitled to joint parenting of the child and 50:50 vacation time, with the child’s ordinary residence with the mother from the next school academic year.
{{/usCountry}}Under the Family Court’s order, the mother was made responsible for the custody, care, safety and security of the child during his ordinary stay with her, as well as for the child’s maintenance expenses and 50% of his educational expenses. The father was held responsible for paying 50% of the child’s school fees and educational expenses.
Aggrieved by the order, both parents had approached the high court, questioning parts of the joint parenting plan “imposed” by the Family Court — majorly based on the wishes expressed by their son during his personal interaction with the Family Court judge, in which he had expressed his wish to be with both parents and that he wanted to see both of them happy.
The high court on Tuesday allowed their separate petitions and struck down the Family Court order, observing that a joint or shared parenting plan cannot be imposed on the parties without affording them an opportunity for a meaningful hearing.
Justice Godse said such a joint parenting plan may result in further complications in already troubled situations and may affect the welfare of the child and may have an adverse psychological impact on him or her.
“A joint parenting plan would mean a meaningful role for each parent in decision-making and the child spending sufficient, high-quality time with both parents,” the court said, adding that, “The educational requirements, medical or health issues, extracurricular activities, and the child’s emotional stability must be kept at the centre while structuring a joint parenting plan. A strict 50-50 split is not a practical solution and may lead to further conflicts.”