Bombay HC Allows Access Between Father & Son After Divorced Mother Withdraws Shared Parenting Consent

The Bombay High Court in its recent order dated September 30, 2021 has emphasised how ‘equal love and affection of both parents is must for overall well being of the child’.

The high court was hearing a petition filed by a woman who wanted to deny shared custody access between her son and his separated father. Incidentally, the woman had agreed to the arrangement, however, withdrew her consent later. 

Case:

The couple had got married in April 2008 and were blessed with a son in 2017. However, in February 2020, the couple was legally divorced and as a result of multiple litigations, it was agreed between them that the child would be in exclusive custody of each of them in a shared custody arrangement, which would mean that the child would spend half the week with his one parent and the remaining half with the other.

This agreement was arrived when the litigation over the child’s custody had went upto the Supreme Court. Further, the Family Court in the city too had ordered the parties to stick to the arrangement till the time the high court decides their appeals against divorce decree.

However, the wife didn’t let her son in his father’s custody, as agreed. The father then petitioned Justice Sayed’s bench seeking enforcement of the agreement. 

Bombay High Court

The bench of Justices Amjad Sayed and Shivkumar Dige was hearing a plea filed by a woman, who had sought recall of the bench’s orders directing her to allow her estranged husband to meet their only son twice a week.

The woman, was however, not ready to give access to the child and argued that the courts have not followed the mandate of the Hindu Minority & Guardianship Act, 1956, wherein it is provided that the custody of a minor, who has not completed his age of 5 years, shall ordinarily be with the mother.

Justice Sayed, in his orders, however, noted that the wife had herself agreed for the shared custody agreement, which has been approved even by the top court and that she cannot now back of. The judge said,

The conduct of the wife in denying exclusive custody or access of the child to the husband, notwithstanding the order of this Court cannot be countenanced.

Adding further on how child needs love and affection of both parents, the bench said,

The child needs the love and affection of both the parents for his overall well being and it is the welfare of the child which is paramount consideration.

While ordering the wife to allow her ex-husband to meet with their son, the high court also remarked,

It appears to us that the wife only wants to somehow deny even limited exclusive access/ custody to the husband notwithstanding the orders of the Family Court and this Court, and after having herself agreed to the shared custody of the child before the Supreme Court.

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