Bombay HC to Family court;Factors to be considered while deciding child custody dispute

The Bombay High Court Wednesday suggested that family courts have to sympathetically consider the financial, physical, mental stress while awarding custody of child to warring parents. The court pointed out the need of a balanced look by taking into consideration the changing social, financial dynamics and progressive gender equations. In a case that is being presently heard, the family court, after directing the parents to submit a joint parenting plan, had awarded joint custody of six months to each parents relying on the 257th report of the Law Commission. The court had, however, not considered the report in its totality, the father, with whom the child lived, argued and appealed against the order. He also argued that the parenting plan is voluntary and not compulsory. The mother, on the contrary, was content with the arrangement set out by the court. “It cannot be compelled,” said Justice Mridula Bhatkar. Elaborating further she observed that a mother is equal to the father, and who shares equal responsibilities in the child’s upbringing. Earlier, the court said, the mother had no role in taking decisions in the child’s education, career or other development. “She was supposed to feed the child, take his care physically and fulfill the child’s emotional needs. Undoubtedly, all these perceptions and social norms have financial dynamics. Who earns more is a better guardian was the simple rule,”
observed Justice Bhatkar. Having said that, in HC’s opinion, the legal world had eventually discovered a myth in this ground rule and also factors that determined a custodial matters. “The divorces are increasing in the society so more and more children are subjected to the trauma of choosing custody,” Justice Bhatkar said. The society, she said, was becoming “complex” and the parents were striving hard to run a household while trying to provide the best for the child’s future. “Under these circumstances, along with the welfare of the child, it is necessary for the Courts to consider sympathetically the financial, physical, mental stress the parents carry and the emotional plight of the parents while awarding custody.” In addition, the HC went on to observe that there could be a bad husband or a bad wife, but it is not necessary that they are bad at parenting. As a result in most cases, it said, egos or incompatibility led to fights between parents. “They become selfish and the child is put to stake as a pawn by one parent to avenge the other,” the HC observed. It was observed by the court if parents are psychologically stable, positive and happy, then, in turn they can provide a conducive environment to the child to grow. 

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