Child Custody Orders Can't Be Rigid And Final, Can Be Moulded Keeping In Mind Needs Of Child At Various Stages Of Life: Bombay High Court

Child custody orders can be altered and moulded at various stages of a child’s life keeping in mind his welfare, the Bombay High Court has observed.

A single bench of Justice Neela Gokhale allowed a man to re-approach the Family Court to alter the mutual consent divorce terms with his ex-wife regarding child access, owing to the wife’s remarriage.

“They (custody orders) are capable of being altered and moulded, keeping in mind the needs of the child at various stages of life, including the circumstances of the parents in so far relating to the welfare of the child,” the court observed.

Facts

The couple was divorced by mutual consent in 2017. According to the consent terms the parents had joint custody of the child. The father approached the family court u/s 26 of the Hindu Marriage Act r/w Order XXXIX Rule 1 of the CPC, Section 34 and 37 of the Specific Relief Act r/w Section 151 of the CPC.

Citing his ex-wife’s remarriage, he sought modification of the consent terms to the extent that he be declared the sole, permanent and legal guardian of the child.

He approached the high court after the Family Court refused any relief on the ground that his plea u/s 151 of the CPC was not maintainable as he could seek guardianship under Guardianship and Wards Act 1980.

Observation

The bench said the family court’s view was hyper technical. While the family court was correct in holding that the father could seek legal guardianship only under the Guardianship and Wards Act 1980, an application to change the consent terms u/s 26 of the HMA was perfectly tenable, the court said.

The court noted that matters related to a child’s custody are sensitive issues that require appreciation and consideration keeping in mind the nature of care a child requires in the growing stages of his or her life.

“Therefore, custody orders are always considered as interlocutory orders and cannot be made rigid and final.”

The bench relied on the Supreme Court judgement in Rosy Jacob vs Jacob Chakramakkal wherein the apex court made it clear that with the passage of time, the court can modify the order in the interest of the minor child. The court went to the extent of saying that even if the orders are based on consent, those orders can be varied, if the welfare of the child so demands.

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