READ ORDER | Karnataka High Court Upholds Shared Parenting Order By Family Court; Lays Down Guidelines For Non-Custodial Parents

The Karnataka High Court in its August 2021 child custody order has cited that Non-custodial parent is entitled to equal number of days as with the Custodial parent during holidays, festivals, birthdays and other important family functions. The high court was hearing a petition filed by the wife (mother of children) in an appeal against the Hubbali Family court order that came in March 2021. 

Case:

Couple got married in 2005 and had their first son in the same year. They also have a daughter who was born in 2012. 

In 2015, the husband (father of children) filed a petition with the Family Court under sections 6, 7, 17, 25 and 26 of the Guardians and Wards Act, 1890, for declaration that he was the custodian and guardian of the minor children. The said petition was contested by wife. 

Family Court

Though several contentions, allegations and counter allegations were made from both sides in the matter with regards to interim custody of the minor children, the family court upheld the settled principle in law with regards to child custody, citing welfare of children as paramount consideration. The family court adopted the concept of “Shared Parenting” and allowed custody and visitation rights to the father – which is essential for the well being of the children. 

The wife contested this family court order in the high court.

Karnataka High Court

Justice S R Krishna Kumar heard both sides of the matter and opined that the Family court order did not suffer from any illegality, or infirmity, which has occasioned failure of justice warranting interference by the high court under Article 227 of the Constitution of India. 

Dismissing the petition by wife, the high court remarked,

Before parting, it is necessary to state that there  has been substantial increase in matrimonial cases over the last three decades and invariably, in every case where minor children are involved both spouses fight bitter battles regarding guardianship, custody and visitation. So also, in every case, applications are filed by the non-custodial parent for interim custody during the pendency of the litigation between the spouses.

The Family Courts and Courts dealing with matrimonial matters are flooded not only with  disputes between husband and wife, but Courts are also called upon to adjudicate upon interlocutory applications filed for interim custody and shared parenting, which has now become  the norm compared to earlier times when custody of the minor children would remain only with the custodial parent and the non-custodial parent would be deprived of the company of the minor child which would impact and affect the welfare and overall well-being of the minor child.

Justice Krishna Kumar elaborated on the set principles in child custody and guardianship cases which have been directed by Supreme Court of India. He quoted,

While the principles relating to custody and guardianship of minor children are well settled by several decisions of various courts including the apex court and this court, invariably, in all matrimonial disputes where the question/issue regarding child custody is also in dispute, either both parties file applications seeking interim custody/visitation rights, in respect of the minor children. Due to several reasons, the family courts and the trial courts are not in a position to consider and dispose of the said interlocutory applications in relation to child custody and such applications are usually decided after a long lapse of time during the pendency of matrimonial proceedings.

In this context, it is relevant to state that since the welfare of the child is of paramount consideration and the court functions both as the guardian and custodian of minor children involved in a matrimonial dispute, it is imperative that all courts should endeavour to make interim arrangements with regard to interim custody/visitation rights during the pendency of proceedings, irrespective of whether any interlocutory application for interim custody/visitation/shared parenting has been filed or not by either party. It is also to be stated that the existing statutory provisions in relation to interim custody of minor children do not provide sufficient guidance for the trial courts in dealing with interim custody or visitation rights or shared parenting.

The Karnataka High Court thus issued some of the following broad guidelines to all family and trial courts while dealing with issue relating to interim custody and visitation rights of minor children:

(I) The following legal principles have been enunciated in various cases before the Apex Court and other High Courts and shall serve as guidelines for interim custody orders by the family courts:

1. The separation of the minor from the parent during the pendency of the case is detrimental to the welfare of the child
2. Notwithstanding allegations made by either party, interim custody applications must be decided on the sole basis of the welfare of the child
3. There exists no indefeasible right to deny custody of either parent of the minor

 

(II) Whenever such interim custody applications are filed, the respective family courts must dispose of such cases within a reasonable time period of not more than thirty days

(III) Per contra, what is of paramount importance while exercising the court’s jurisdiction, is the welfare of the child. The welfare and interest of the child becomes the determining factor for the court’s granting of custody. This includes the child’s contentment, health, education, intellectual development and favourable surroundings which are to be given due weightage, but the child’s moral and ethical values are as important, if not more so, than the aforementioned physical comforts. Application of this principle must exist in interim custody orders to protect children in broken homes and ensure that they are looked out for.

(IV) The rights of the non-custodial parent is intertwined and integrated with the rights of the child and therefore, the child has the right to be with the non-custodial parent for equal number of days as with the custodial parent during holidays, festivals, birthdays and other important family functions. The child may also be permitted to accompany the non-custodial parent if they are residing outside the state/ country with an undertaking to submit travel plan.

(V) It is a well-known and a well-settled principle that character building is an essential part of a child’s growth and in this process, parents are the facilitators and in the absence of any one of the parent interacting with the child, the child would become that much unfortunate and deficient.

(VI) While considering interim measures when both parents are residing in two different states, it would be advisable to permit the non-custodial parent, to have physical visitation rights at least once in 15 days for at least 2-days with day/night exclusively with such parent. In case the non-custodial parent is living abroad, various other kinds of contact such as phone/video communication can be adopted.

I may add that the aforesaid broad guidelines are only illustrative and not exhaustive and it is for the Courts to take necessary steps and pass appropriate orders depending on the facts and circumstances of the case.

The registrar was directed to circulate copy of this order to all Family Courts in the State as well as all trial Courts and appellate Courts dealing with matrimonial disputes.

ALSO READ –

ALSO WATCH –

NRI Fathers Suffering Child Abduction To India By Estranged Wives | No Law For Men

Join our Facebook Group or follow us on social media by clicking on the icons below 

Join our Facebook Group or follow us on social media by clicking on the icons below