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

While deciding the question of custody of a minor child in a matter, the Karnataka High Court on Friday (11th September) referred to the principle of Shared Parenting which is defined to include shared parenting authority as well as shared parenting responsibility in the day-to-day upbringing and the welfare of the children.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 caseThe 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 ObservationThe 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...

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

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