Earlier this month, the Karnataka High Court while deciding the custody of the minor child, given emphasis on parental responsibility. The court also observed the transformation of custody and visitation rights into the responsibility of parents.
In a reamrkable judgement Division Bench Comprising Justice B. V. Nagarathna and Justice N. S. Sanjay Gowda, emphasising on parental responsibility said in the order that “A child is not an appendage of his parents“.
“Over a period of time, the concepts of custody and visitation rights have transformed themselves into the responsibility of parents towards children. A central theme of this transformation is the emphasis on parental responsibility which requires that the child should be treated as an individual having his or her own capabilities and limitations as well as independent opinions. A child is not an appendage of his parents.”, in the order.
In the case, the mother of the minor child (Master Aditya Rajiv Ratnam) filed a petition for the custody of the child under Sections 7 and 17 of the Guardians and Wards Act, 1890. The said petition was filed before the Family Court, Bengaluru in the year 2012. III Additional Principal Judge, on November 21, 2014 issued certain directions regarding visitation to the respondent father and awarded custody to the mother.
Then both the parents preferred appeal, being aggrieved from the impugned judgement. The bench also noted that the family got mutual consented decree of divorce in August, 2020.
The bench pointed out the conflict between the husband and wife over custody.
“Whenever, the husband and wife seek to dissolve their marriage, the conflict over the custody of the child, particularly a minor child, assumes significance.”
The bench also pointed out that, the conflict sometimes “resulting in dilution of any settlement”.
“Whenever there is opposition by a party for giving custody of the child to another party and vice versa, the conflict can become extreme and aggravated sometimes resulting in dilution of any settlement that could be arrived at between the parties to seek dissolution of their marriage.”
The bench said that children are most affected one, in case of dissolution of marriage.
“One cannot underestimate the fact that in the case of separation of parents on account of dissolution of marriage by a decree of divorce, the children of the marriage are most affected physically, emotionally and their upbringing would take a beating.”
The bench said that, “Shared Parenting” is the emerging concept to resolve the conflict between parents, and it is in vogue at some overseas jurisdictions, while it is only handful cases in India.
The bench pointed out the need of love and affection of both parents for child development.
“It is necessary to remind ourselves that a child requires both parents, the mother and the father in jointly bringing up the child which would have a holistic impact on the overall growth of the child.”
The bench then discussed about “joint responsibility” and their contribution to the development of the child.
“This is because both parents have a joint responsibility in bringing up their children as each parent would contribute in a unique way to the mental, physical and emotional/psychological development of the child. Hence, whenever there is a separation between the parents, shared parenting would mean that the joint responsibility would continue subject to certain arrangements being put in place.”
The bench also discussed about the two terminologies, namely, “joint physical custody” and “joint legal custody“.
“Joint legal custody means that both parents have equal rights and responsibilities towards the child including the child’s education and upbringing, whereas the joint physical custody would mean, both parents would share the physical custody of the child by spending equal time and having equal contact with the child.”
The bench also referred the area of consensus of the conference orgenised by “The International Council on Shared Parenting (ICSP)” held at Bonn, Germany, in July 2014. In the conference it was agreed that, shared parenting could be passed even in case of any parent opposes it. It also talks about accessing the network of family relationship.
“That ‘shared parenting’ is defined to include both the shared parental authority (decision making) and shared parental responsibility for the day-to-day upbringing and welfare of the children, between both the parents keeping in mind children’s age and stage of development. Thus, ‘shared parenting’ is defined as the presumption of shared rights in regard to the parenting of children by fathers and mothers who are living together or apart.”, one of the agreed point of the conference.
The bench also refferred the observation of Madras High Court judgement in Mr.S.Anand vs. Ms.Vanitha Vijaya Kumar matter.
“It is quite unfortunate that the Courts still dabble with the age old concepts of custody and visitation rights. These terms emanate from a rights regime rather than a responsibilities regime”
The bench also observed the importance of shared parenting after the divorce.
“Thus, the concept of shared parenting would assume greater importance after the divorce of parents by a dissolution of their marriage. Questions such as custody and visitation rights would then assume significance in the context of the responsibilities of the parents towards their children. Thus, the concepts such as “joint legal custody” or ‘joint physical custody’ have emerged over a period of time in several legal regimes.”
The bench notably said that,
“there is a clear momentum in law towards shared parenting with the child in focus and the rights of the child being the over-riding factors rather than the rights of the separated parents. It would be ideal if the parents jointly submit a plan for shared parenting. In the alternative, the Court must exercise its parens patriae jurisdiction.”
On the parenting plan, the bench said that convenience to the child must be ensured.
“That while preparing a joint parenting plan, care must be taken so that there is no instability or inconvenience caused to the child. Also the expression “joint” or “shared” would not mean mathematical exactitude or precision, as there must be pragmatism and innovation required at every stage.”
The bench further said that, court to bear in mind the “paramount welfare of the minor child” while appointing guardian under section 7 of the Act.
“Section 7 of the Act empowers the Court to appoint a guardian for the person or property of a minor. While exercising jurisdiction under the said Section, the Court has to bear in mind the paramount welfare of the minor child.”
The bench passed various directions considering the concept of shared parenting, to ensure the child spent equal time with both the parents and also ensured that this will not lead further litigation.
The bench passed the order in a way that, the child will be able to spent the vacation time equally with each parents, and the distant parent will have the visitation rights. The bench also focused towards the child comfort during the child resides with one parent.