not “custody plan”. Custody is a narrow term and parenting is a wider
terminology which implies joint responsibility. Hence, it does not only
contemplate physical handing of the child 50% to one parent and the other
50% to the other parent. A parenting plan must therefore take into account
the “parental responsibility” as opposed to “parental rights” which are not
statutorily granted. The aforesaid recommendations of the Law
Commission must be read in that light. In the case of Smt.Anjali Kapoor
vs. Rajiv Baijal (supra), the Supreme Court has referred to the
observations of the New Zealand Court in Walker vs. Walker & Harrison
reported in 1981 New Ze Recent Law 257, which are as under:
...Welfare is an all encompassing word. It includes material welfare;
both in the sense of adequacy of resources to provide a pleasant
home and a comfortable standard of living and in the sense of an
adequacy of care to ensure that good health and due personal pride
are maintained. However, while material considerations have their
place they are secondary matters. More important are the stability
and the security, the loving and understanding care and guidance,
the warm and compassionate relationships that are essential for the
full development of the child's own character, personality and
talents.”
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.5403 OF 2015
Tushar Vishnu Ubale ... Petitioner
Vs.
Archana Tushar Ubale ... Respondent
CORAM: MRS.MRIDULA BHATKAR, J.
DATE: 15th JANUARY, 2016
Citation;AIR 2016 Bombay 88:2016(4) ALLMR 1
1. The order dated 27.5.2015 passed by the learned Judge of the
Family Court, Mumbai, in respect of directing the joint parenting plan by
handing over six months custody of the child to each parent is challenged
in this appeal.
2. The petitioner/father is a Surgeon and the mother is working as a
nurse. They got married on 10.10.2008. It was an intercaste and a love
marriage, which was not approved by the parents of the mother. The child
Mukta was born on 8.10.2009.
3. Ms.Iyer, the learned Senior Counsel for the Petitioner, submitted
that the Court in its order had directed the parents to submit a joint
parenting plan. She argued that the adopting joint parenting plan is a
voluntary act of the parents. It cannot be directory. However there was a
specific direction given by the Court so a joint parenting plan was
submitted by both the parents and therefore the learned Judge ought not
to have construed that the submission of such joint parenting plan was a
consensual act of the parents. She submitted that the correct method was
not adopted by the learned trial Judge to take forward the idea of joint
parenting plan which is based on the report of the Law Commission
submitted on 25.5.2015. It is submitted that the learned Judge has
described the Law Commission report which was published on 25.5.2015
as an oven fresh report. However, after going through the Law
Commission report, it appears that the learned Judge could not give
himself time to deliberate upon it as the order was passed immediately
i.e., on 27.5.2015.
4. The learned Senior Counsel pointed out various suggestions of the
Law Commission which are mentioned therein and referred to in the order.
In clause 5.8, the Law Commission has stated about crystallisation of the
Rules as per the requirement of the child. It has proposed amendments in
the Guardians and Wards Act. Then, in Chapter 11A of the Law
Commission report, parameters are given by the Law Commission in
respect of the custody issue of the child. These are also referred to in
para 14 of the judgment. She submitted that though these are referred to,
they are not properly considered by the learned Judge. She further
pointed out paragraphs 106, 107 and 108 and also clauses 3.3.4 and 3.3.5
and in paragraph 3.5, in which the Law Commission has expressed that
considering the prevailing distribution of roles assigned to the parents by
the Indian society, the idea of shared custody may not be possible and the
Court needs to weigh the circumstances accordingly. She pointed out that
the learned Judge has straightaway divided the custody for six months
between the father and the mother which is not at all good for a healthy
upbringing of the child, who is more attached to the father. It is necessary
for the Court to consider a degree of comfort of the child which is
completely ignored by the learned trial Judge. The Law Commission has
expressed that if at all the non-custodial parent relocates himself / herself
where the school of the child is situated then it would be the material fact
for considering joint custody. In the present case, the learned Senior
Counsel submitted that the mother has relocated herself and has started
residing at Chembur near the school of the child and the residence of the
father. However, the Family Court should have considered what is the
duration of the relocation, whether it is on the leave and licence, whether
that residence is going to be available to the mother so that the child can
stay there comfortably with the mother, etc. The suggestions of the
parenting plan are required to be read in proper perspective. The Law
Commission never intended shifting custody directly by 50% between the
parents. While granting the custody, the Court has to consider the element
of stability so also the element of inter-spacing with both the parents.
5. She further submitted that the learned Judge has shown concern
about making financial provision for the child. However, the arrangement
made by the learned Judge is troublesome. As per the order, joint account
of the parents is to be opened. The father is going to deposit Rs.10,000/-
and the mother will deposit Rs.5,000/- per month and thus, the child will
have Rs.15,000/- per month in her account and for withdrawal of the said
amount, the parents will have to come to the Court and seek permission of
the Court. She submitted that this is not workable. She further pointed
out that the learned Judge has directed that in order to take care of the
mental and physical health of the child, one mediator, who is a psychiatrist
is appointed, so the child is to be referred to the Psychiatrist on the issues
of dispute between the parents and the Mediator will have to report
ultimately to the Court and seek the advice of the Court. She argued that
approaching the Court for each and every decision or action is not feasible
for the parties. The order of the access is given, however, if at all there is
a default in giving the access, then, the defaulter is directed to pay cost of
Rs.1,000/-. Such rigid order cannot be passed in a custody issue but to
make it workable, some flexibility is required. The father has submitted a
parenting plan and mother has also given her parenting plan and as per
the parenting plan of the mother, it is suggested that the custody of the
child is to be given in alternate week to each parent. She argued that
shifting of custody on alternate week is not a good suggestion but
enhanced access can be substituted for the same. In respect of staying of
the child in vacations such as Summer, Diwali and Christmas as also on
festivals and some special days such as birthdays, can be worked out by
consent. She submitted that since June, 2015, till today, the child has
stayed with both the parents though the custody has remained with the
father and the child is fine and mentally healthy and has the same
attachment with the mother.
6. Mr.Warunjikar, supported the order passed by the learned Judge of
the Family Court. He read over the relevant paragraphs from the
judgments of the Supreme Court. He relied on the judgments in
Smt.Anjali Kapoor vs. Rajiv Baijal1; Gaurav Nagpal vs. Sumedha
Nagpal2; Shyamrao Maroti Korwate vs. Deepak Kisanrao Tekam3 and
Vikram Vir Vohra vs. Shalini Bhalla4.
1 (Civil appeal No.2628 of 2009) decided on 17.4.2009
2 Civil Appeal No.5099 of 207 decided on 19.11.2008
3 Civil Appeal No.2817 of 2008 decided on 14.9.2010
4 Civil Appeal No.2704 of 2010 decided on 25.3.2010
7. He also relied on the report of the Law Commission. He submitted
that the Family Court has relied not only on the Law Commission report
but also a draft of the parenting plan which was approved by the High
Court and which is put on the website of the Family Court. He further
submitted that alongwith the Law Commission and the draft parenting plan
approved by the High Court, the learned Judge of the Family Court has
also another document for his assistance and that is the report of the
marriage Counsellor of the Family Court. The objection raised by the
counsel for the petitioner that the learned Judge of the Family Court
without interviewing the child has passed the order in respect of parenting
plan, is not sustainable because the marriage counsellor has interviewed
the child and has submitted the report. So, the learned Judge of the
Family Court is fully justified in passing order with the help of guidelines
and other suggestions in the report of the Law Commission. He submitted
that the order of the appointment of the Mediator is also very innovative
method and shows a sound approach of the learned Judge to enable to
keep the follow up of the custody. The order passed by the Family Court
is to be considered in its totality. Mr.Warunjikar argued that upon such
consideration, it would have to be seen whether the welfare of the child is
considered properly after weighing of the available resources and
prevailing circumstances in the present case. He further submitted that
the child is very happy with the mother and the mother has relocated
herself to Chembur. Her mother is also staying with her. So being a
nurse, whenever the mother has to go for work, the grandmother attends
to the child and due to the order passed by this Court on 7.8.2015 and
1.10.2015, the child could establish rapport with the maternal grandmother
and also now is happy in visiting both the parents.
8. In reply, Ms.Iyer, the learned Senior Counsel, submitted that the
cases cited by the learned counsel for the respondent are to be
considered in the light of their facts. Joint Parenting is different from joint
custody. The Court has to consider the meeting of minds of the child and
the parents. The Law Commission's report is not only on joint parenting
plan but the suggestions are given in respect of changes in Guardian and
Wards Act and custody. The Law Commission has laid down a number of
aspects which the Judge has to take into account in respect of custody of
a child and one of them is the joint parenting plan. However, she pointed
out that in Clause no. 3.3.5 of the Law Commission Report, the Law
Commission has expressed that they are not in favour of law placing
presumption in favour of joint custody. It is necessary to take into account
para no. 3.3.1 which speaks of the reasons for adopting the joint custody.
The reason given is of simultaneous association of both the parents with
the child.
9. The 257th report of the Law Commission of India is on guardianship
and custody laws in India. The words 'guardianship' and 'custody',
needless to say, are two different terms. Chapter III is on the concept of
joint custody and in Chapter V, the Law Commission has mentioned and
discussed the considerations for deciding child custody cases. These
considerations are as follows:
a. Factors to consider for best interest and standard
b. Determining the preference of the child
c. Access to records of the child
d. Grandparenting Time
e. Mediation
f. Relocation
g. Decision making
h. Parenting Plan
i. Visitation
10. These are the recommendations given by the Law Commission and
that is not law and is not binding. The intention of the learned Judge of the
Family Court to adopt these suggestions and also the High Court rules
and chalk out a Parenting Plan is undoubtedly admirable. It shows that he
was keen to experiment these new methods and apply to this case.
However, the learned Judge has used a mathematical formula in deciding
the custody issue, which needs to be modified. The Law Commission
wants the Judges working in the Family Court or handling the issues of
guardians and wards to refurbish their fixed ideas and to have a makeover
in their perceptions. In detail, various aspects are considered in the report.
On the point of joint custody, in para 3.2.1, it is mentioned that joint
custody is not specifically provided for in Indian law. It is necessary to
highlight the important observations and suggestions on the point of joint
custody in para 3.3.5 which is thus:
3.3.5 In the legal systems of several Western countries that we
have reviewed in this chapter, there is a presumption in favor of joint
custody, and sole custody is awarded only in exceptional
circumstances. We have already referred to the inequalities in
parental roles, responsibilities and expectations that exist in our
country. Therefore, we are not in favour of the law placing a
presumption in favour of joint custody. As opposed to the case of
guardianship, where we have recommended shared and equal
guardianship for both parents, in this case, we are of the view that
joint custody must be provided as an option that a decision-maker
can award, if the decision-maker is convinced that it shall further the
welfare of the child.
(emphasis added)
11. Thus, shared and equal guardianship is recommended by the Law
Commission. However, joint custody is provided as an option. Therefore,
the Judges, who are working on the family laws and the issue of custody,
should not hold a view that once the Law Commission has given the
suggestion of a Parenting Plan, it is binding in all the cases to adopt the
same. The parties are not to be compelled to give such plan which
amounts to illegality. Parenting Plan is an option for both the parties.
12. It is to be kept in mind that the ideas of custody have changed due
to economic, social developments. The notions of responsibilities and the
roles attributed to men and women cannot remain static throughout. In the
last few decades women stepped out and are educated, so also are
economically independent. Women cannot be treated as inferior or second
guardian in the family. The mother is an equal partner of the father, who
shares equal responsibilities in bringing up the child. Earlier, she 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. However, gradually, the legal
world discovered the myth in this rule and the number of factors are found
to have a bearing over the custody issue. The divorces are increasing in
the society so more and more children are subjected to the trauma of
choosing custody.
13. In the custody matter, the child, mother and the father are the main
stakeholders and the law repeatedly has emphasised as a settled position
that the welfare of the child is the paramount consideration. However, one
has to take note that today, the families are nuclear and the couple
restricts the family to one or two children. The society is becoming
complex and the parents have to struggle hard to run the household and
give better future to the child. Under these circumstances, alongwith 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. If the parents
are psychologically stable, positive and happy, then, they can provide a
healthy atmosphere to the child. Usually, the child is not a problem child
but the problem lies in the parenting.
14. Not all the parents have sound financial condition. If it is one child
then, each one of them showers gifts and love on the child so much that
the child becomes selfish and demanding. This is also a warning to the
warring parents that they should not try to purchase the love of their child.
The Judge has to use his/her worldly wisdom to find out at the time of
interviewing the child whether child is a victim of the attitude of
blackmailing parents emotionally.
15. For spouses, who are stying away from each other and fighting for
the child, the word 'custody' connotes inherent crisis of sharing. To get
company, love and affection of both the parents means a shared custody.
A child wants to share his joys and sorrows, failures and success, with its
parents simultaneously. Such simultaneous association is required for the
healthy upbringing of the child. A father and a mother have different
responses towards the child's sharing, which is also necessary. The child
must get a sense of belonging and social security and he should not feel
that he has a broken family and should not develop self pity. The child
may become a centre of either curiosity or comments, staring or sympathy
from his friends, classmates and relatives. Peer pressure has negative
impact on the tender and impressionable mind of the child. In the absence
of simultaneous association with both the parents, the child misses
completeness of his relationship. Therefore, shared custody may be an
option open for the court to offer parents and make them aware of not only
their child's needs but also the child's rights. As argued by the learned
Counsel for both the sides, the 257th report of the law commission is not
only about shared parenting, but these are the recommendations on
guardianship and custody laws in India, wherein under different chapters,
the Law Commission has penned down its concept of joint custody,
mediation in child custody cases and, also in chapter V, the considerations
for deciding the child custody cases. Number of factors are to be taken
into account in custody cases in the best interest of the child and parenting
plan is one of these considerations.
16. Consent thereto cannot be imposed. The submission of the joint
parenting plan or shared custody is required to be suggested by the Court
and so also by the Counsellors to the parents. It is necessary to give them
time to prepare themselves emotionally for such shared custody, which is
difficult for the parents to digest initially. It is a matter of an attitudal
change. The Law Commission has elaborated the parameters in respect of
the child custody but has also expressed that considering the roles
attributed to the parents as per our social norms and behavioural patterns,
the idea of 50% shared parenting may not be conducive in Indian society
in all the cases. The Law Commission has voiced that the seeds of the
globally accepted concept of shared custody can be sown and the
saplings can be planted in the minds of the parents so that the fruits of the
company of both the parents can be enjoyed by a child of the warring
parents. The Law Commission has commented on the crystallisation of
the roles and number of issues of the child in respect of the child's
development. The Judges require to be active and sensitive while
deciding issues of custody and access.
17. One of the tests to ascertain a healthy and happy mind of a child is
whether the child has love, affection and equal respect towards noncustodial
parent or not. If it is found that a child is not willing to go to the
non-custodial parent and complains continuously about the other parent,
then it can be inferred that the child's mind might be poisoned and the
child is tutored. This indicator can be applied to ascertain the healthy
upbringing of the child. It is to be remembered that to have access to both
the parents is the right of the child which prevails over the privilege of the
parents to have custody or access. There is no statute granting any legal
right upon any parent to have the child's custody in preference to or
overriding the other. Therefore, the jurisprudence on the subject is taking
into account the welfare of the “child” alone. In most of the cases, egos or
incompatibility are the reasons for fights between the parents. They
become selfish and the child is put to stake as a pawn by one parent to
avenge the other. A person may be a bad husband or a bad wife, but he
may not be a bad father or she may not be a bad mother. It is necessary
for the fighting parents to understand and to bear in mind that the child
loves both, needs both. Justice Roshan Dalvi of this Court in one of the
workshops on child custody has defined rhetorically but aptly the word
'FAMILY' as 'Father And Mother I Love You'.
18. Separation is a shock for the child that his family has been
destroyed. It gives rise to fear of the future as well as anger in the mind of
children and they do not understand who should be blamed. There is a
possibility of self blame and a feeling of guilt also. A majority of the
children want contact with both the parents on regular basis and if it is
denied, then, the children become hostile to the once loved but now noncustodial
i.e., absent parent. If a custodial parent speaks badly about the
the absent parent, the child tends to identify with that sentiment. Gradually
a feeling that I can do without the absent parent develops and this gradual
parental alienation becomes a part of the child's life and which may lead to
social alienation which is in fact a deep trauma and not a healthy or happy
circumstance. Alienated children often show contempt and withdraw
affection whenever they are in contact with the parent. Physical
estrangement adds to emotional alilenation.
19. Thus, Parenting Plan is a mutual arrangement of custody and
access which is an outcome of matured parenting. The ideal situation is
that joint parenting is a rule and single parenting is an exception. There
may be a single mother or a single father left behind due to a blow of
destiny, then, the child has no option. However, when both the parents are
available, their association with the child cannot be artificially denied only
due to fights and hatred and vindictive approach of the parents. Hence,
though it is not mandatory that all the parents should adopt a Parenting
Plan, it is advisable that the family Court to invite a Parenting Plan in the
cases found suitable upon the Law Commission which has taken formal
cognisance of the legal right involved in joint parenting. This, of course,
may be attuned to circumstances and must account for the special needs
of the particular child.
20. It is necessary to buttress that the word used is “parenting plan” and
not “custody plan”. Custody is a narrow term and parenting is a wider
terminology which implies joint responsibility. Hence, it does not only
contemplate physical handing of the child 50% to one parent and the other
50% to the other parent. A parenting plan must therefore take into account
the “parental responsibility” as opposed to “parental rights” which are not
statutorily granted. The aforesaid recommendations of the Law
Commission must be read in that light. In the case of Smt.Anjali Kapoor
vs. Rajiv Baijal (supra), the Supreme Court has referred to the
observations of the New Zealand Court in Walker vs. Walker & Harrison
reported in 1981 New Ze Recent Law 257, which are as under:
...Welfare is an all encompassing word. It includes material welfare;
both in the sense of adequacy of resources to provide a pleasant
home and a comfortable standard of living and in the sense of an
adequacy of care to ensure that good health and due personal pride
are maintained. However, while material considerations have their
place they are secondary matters. More important are the stability
and the security, the loving and understanding care and guidance,
the warm and compassionate relationships that are essential for the
full development of the child's own character, personality and
talents.”
21. Keeping all these relevant factors in the background, the issue in
the present case can be determined. The child is 6 years old and she has
been staying with the father throughout. The mother is not staying with the
father since March 2014. However, she has started residing near the
house of the father and near the school of the child. Thus, the dispute
between the father and the mother is not old but is fresh and under such
circumstances, a possibility of reunion of the parents cannot be denied.
I found both the parents loving and mature. In fact, both the parents want
their family intact and are attached to their child. Reciprocally, the child
has also similar feelings for her parents. When I interviewed the child in
the Chamber, I found that the child is talkative, fearless and happy. She
has no sense of insecurity in mind. The credit goes to both the parents,
who though are living separate, did not poison the mind of the child
against each other or the members of the family. Therefore, it was easy to
grant access for a longer time to the mother, who was not residing in her
matrimonial home.
22. The child is used to surroundings, friends and the relatives where
she is residing at present. She is also getting familiar with the place where
the mother is residing. She mentioned that she has more friends where
she is residing at present but she has also got one friend where her
mother resides. The father's mother is a very good attendant and is a
great support to the child. The mother i.e., the respondent has also
expressed her gratitude towards her mother-in-law for taking care of her
daughter. Similarly, her mother has also shifted to her house and is readily
looking after the child. Thus, in this case, the child is fortunate to have two
caring grandmothers.
23. Considering the totality of the circumstances, I am of the view that
the custody of the child shall at present essentially remain with the father
because in this case, the child has stayed and has been brought up in the
house of the father. I found this case as the best wherein the order of
shared custody can be passed and implemented without much fights and
opposition by the parents. Since about past 7 months, both the parents
are having a shared parenthood and more access is given to the mother
time to time so that the daughter can get used to her mother's home. The
mother is to be given a sufficient period of custody each month during
which she would be responsible for the upbringing of the child. The
mother shall pick up the child on the first day of each month and have
custody of the child continuously for 9 days and on the 10th day after
lunch or the school time drop the child at the father's house. The child
shall live with the mother continuously during such period. The mother
shall attend to the needs of the child. On the last day of such period, the
child shall be sent either directly to the school or to the father. Thereafter,
the mother will take the child on the third Wednesday of the month after
school hours and will drop the child at the house of the father at around
1/2 pm or after lunch on the third Sunday. Thus, the child will not feel
disconnected from the mother and there shall be continuous and
simultaneous association with the mother. The child shall have the love,
care and company of both the prents she loves for a reasonable stretch of
days as also weekends. The school vacations shall, as is usual, be
shared equally in this upon mutual arangement and understanding
between the parties. Besides absent parent may call the child on phone
morning and evening and may talk for 5 to 10 minutes. The parents shall
have equal say on attending school meetings and on deciding child's
education, day schedule, hobby classes without taxing child. The birthday
of the child is to be celebrated together in the presence of the parents. In
respect of the meeting of the other family members of both the sides and
celebrations of important events in the family the both the parents being
quite mature, will take the decision accordingly, keeping in mind the best
interest of their child. Thus, complete flexibility in taking decisions on such
issues is left to both the parents. In the event of dispute, the other party
can approach the Court for necessary orders. This arrangement to
continue till there is any drastic change of circumstance or dependency of
psychological need of the child.
24. The idea of an order saddling costs on a defaulter parent is not
correct but upon default compensatory access of the equal period in next
access to the other side is to be ordered.
25. The arrangement of payment of Rs.10,000/- and Rs.5,000/- can be
continued but there is no need to approach the Court for the purpose of
withdrawal of the money. The amount can be withdrawn with the signature
of both the parents. It should be a joint account under the joint
guardianship, in the name of the child with both the parents as the first
account holder. The amount can be withdrawn with the signature of the
both the parents and only for the purpose of her education and
maintainance if necessary. I do not think it is necessary to appoint a
mediator in this case because I found the child mentally and physically
healthy. If at all in future, if unfortunately, the necessity arises, then, the
trial Court is always empowered to pass the required order.
26. Writ petition is thus partly allowed.
27. The Writ petition is disposed of in terms of the above order.
(MRIDULA BHATKAR, J.)
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