[Shared Parenting] 'Child Isn't An Appendage Of Parents', Karnataka HC Invokes An Emerging Concept In A Dispute Over Child Custody [Read Judgment]

The Division Bench Comprising Justice B. V. Nagarathna and Justice N. S. Sanjay Gowda observed,

"It is necessary to remind ourselves that a child requires both, 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 Court further remarked,

"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 background of the case

The Court was hearing the appeals preferred by the wife and husband respectively assailing order dated 21.11.2014 passed in G.& W. case No.101 of 2012 by the III Additional Principal Judge, Family Court, Bengaluru.

The said petition was filed by the wife (mother of minor child Aditya Rajiv Ratnam) under Sections 7 and 17 of the Guardians and Wards Act, 1890 (hereinafter referred to as 'the Act' for the sake of brevity) seeking appointment of herself as guardian of the minor child and to grant permanent custody to her. The said petition was contested by the husband/father of the child.

The Family Court declared the mother as the guardian of the minor child Master Aditya Rajiv Ratnam and that the child shall continue to be under the care and custody of the mother.

However, certain directions were issued regarding visitation rights for the respondent/father. Being aggrieved, both the parents of the child have preferred their respective appeals.

The centre of controversy, which also was also a factor which caused a delay in the settlement of disputes between the parties in the instant case, was regarding custody of the minor child, Master Aditya Rajiv Ratnam.

It may be noted that the parties were granted a decree of divorce by mutual consent by judgment dated 27/08/2020 subject to the terms agreed upon by them.

Court's Observation

The Court was of the view that 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 Court took into account the fact that 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 Court also stressed that one cannot underestimate the fact that in the case of separation of parents on account of the 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.

In this context, the Court remarked,

"One of the ways to resolve the conundrum is, by the emerging concept of shared parenting. In some overseas jurisdictions, the concept of shared parenting has been in vogue and prevalent but not so well entrenched in India and has been ordered only in a handful of cases."

Notably, the Court said,

"There is 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."

The Court acknowledged that fact that the jurisprudence on the custody of the minor children of separated parents has evolved over the decades and both parents are recognized as having equal responsibilities in the custody of their children and thus, the concept of shared parenting is gradually emerging in the legal firmament of India also.

Also, the Court was of the view that the expression 'best interest' and 'welfare of the child' must be imbibed in the context in which the child is positioned between the parents. The facts and circumstances of each case would vary and what is good in one case, may not be good in the other case and vice versa.

Significantly, the Court was of the view that,

"The welfare principles which are in the interest of the child, assume importance. Therefore, prior to the passing of the decree of divorce, it is necessary to seek a parenting plan post-divorce from the parties themselves."

Further, while elaborating on the concept of Shared Parenting, the Court made the following observations:-

* 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 personal profile of the parent, their educational qualification, residence, economic and social status, etc., would be important factors while developing the joint parenting plan. As there is no legislation as such in India on shared parenting, the same must evolve with judicial interference, innovation and involvement in assessing the requirements of each child.

* 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. The focus of attention must actually be on the child.

Subsequently, the Court directed that shared parenting of the minor child between the parents would be in the following manner until the child attains eighteen years of age:-

* At the beginning of the new academic year, assuming, that it commences on 1st June, two days prior to the commencement of the school, the child will move to the father's residence and be with the father till 31st October. From 01st November, the child will be with the mother till 31st March or till the commencement of the summer vacation, whichever is later.

* When the summer vacation commences, fifty per cent of the said vacation shall be spent by the child with the father in the initial part of the vacation and the subsequent period of the summer vacation will be spent with the mother (similar arrangement to continue during winter vacations)

* Thus, during the months from June to October (five months), the child will be with the father and during the months from November to March (five months), the child will be with the mother.

* During the aforesaid period, when the child is in the residence of one of the parents, the court said that other parent would have visitation rights, once in two weeks.

* All information regarding the health of the child as well as information concerning the school and co-curricular activities, etc., shall be exchanged between the parents.

* Both parents must ensure that the child is comfortable and at ease when residing with one of the parents or visiting the other parent. All care must be taken by the parents to ensure the psychological, social, educational and over-all growth and development of the child. In this regard, there must be a joint effort and co-operation between the parties.

* The child's birthday shall be celebrated by the parents jointly, as far as practicable or a consensus could be arrived at in consultation with the child.

[We have not included all the directions issued by the Court, however, the important directions have been mentioned in this story.]

Lastly, the Court said,

"We hope and trust that the aforesaid directions would be scrupulously obeyed by the parents as we think they are in the best interest of the child and keeping in mind comfort, ease and the paramount interest of Aditya, the aforesaid directions have been issued. The same are made after eliciting the views of the minor child Aditya."

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