The concept of 'joint parenting' is not recognised in any of the Indian laws governing child custody or guardianship cases, the Bombay High Court held on Tuesday (September 1), while emphasising on the fact that in child custody matters, paramount importance is given to the welfare of the child and not on the 'parental' rights.

The High Court therefore, quashed a Family Court's order which framed a 'joint parenting' plan for a litigating couple, giving them 50:50 visiting and vacation access to the their child. 

Single-judge Justice Gauri Godse held that such a plan cannot be imposed on Indian parents, as the said concept of 'joint parenting' is not recognised in our country's legal landscape. 

"In Indian law, the statutory framework governing child custody and guardianship does not recognise the concept of joint parenting. There is no compelling equal parenting, and the legal foundation in Indian law is the welfare of the minor child. The statutes governing parental disputes emphasise child welfare as a paramount consideration and not parental rights. Time and again, in various decisions, the Apex Court has ruled that the welfare of the child is the paramount consideration in deciding parental disputes. Hence, the discretionary powers must be exercised by the courts not on the basis of parental rights but on the basis of a child's entitlement to the love, affection, and care of both parents. Parents' legal rights can never override the child's welfare," Justice Godse held. 

Therefore, shared parenting must be structured with visibility in mind, the judge said, adding that without affording the parties an opportunity for a meaningful hearing, a joint or shared parenting plan cannot be imposed on them.

"Such a joint parenting plan may result in further complications that may affect the welfare of the child and may have an adverse psychological impact on the child. With Indian families' mindset in mind, the visibility of a joint or shared parenting plan must be properly structured. A joint parenting plan would mean a meaningful role for each parent in decision-making and the child spending sufficient, high-quality time with both parents. The educational requirements, medical or health issues, extracurricular activities, and the child's emotional stability must be kept at the centre while structuring a joint parenting plan. A strict 50-50 split is not a practical solution and may lead to further conflicts," Justice Godse opined. 

Justice Godse further said that a shared or joint parenting plan, if found to be in the best interests of the child, would be the best solution, but the parents' willingness is most important and thus, before structuring a joint or shared parenting plan, a meaningful and fair discussion and hearing are necessary.

"In the present case, a fair and proper procedure is not followed before imposing a joint parenting plan. Hence, the impugned judgment would warrant interference. The mother's application for modification, therefore, must be remanded to the family court for a fresh decision, keeping in mind the observations in this judgment," the judge made it clear. 

The bench passed the order on pleas filed by both the father and a mother, challenging a Bandra Family Court's judgment passed in September 2024, ordering a 'shared parenting' for the couple's 14-year-old child. The Family Court in its order opined that after interviewing the child, the child has shown inclination to be with the mother but he has also shown equal love and affection for both the parents and that he wanted to see both of them happy and live with them together. 

The Family Court therefore directed that both parents were entitled to joint parenting of the child and 50:50 vacation time, with the child's ordinary residence with the mother from the next school academic year. The mother was made responsible for the custody, care, safety, and security of the child during the child's ordinary stay with her, for the child's maintenance expenses, and for 50 per cent of the child's educational expenses. The father was held responsible for paying 50 per cent of the child's school fees and educational expenses.

Notably, as per the initial arrangement, which the father wanted to continue, the matrimonial house was given as a 'gift' to the mother with she being 50 per cent owner, the child 25 per cent and a similar share for the father himself. The said gift was executed and as per the initially signed consent terms, the father was to enjoy exclusive custody of the child and the mother would get visitation rights. 

However, the mother filed application before the Family Court seeking custody of the child and contended that she was not aware about the clause of the consent terms which gave custody to the father. The Family Court, therefore, granted her the custody and the father alleged that the mother refused him the access to the child. 

Justice Godse noted the facts of the case, and quashed the Family Court judgment which 'imposed' a shared parenting on the couple. 

"It is the custodial parent's duty to make genuine efforts to help the child feel comfortable meeting the other parent. Thus, some efforts on the part of the mother, with whom the child is presently residing, must be made to enable the minor son to spend sufficient time with the father. Apart from the father's right to meet his son, the son also has the right to have his father's company," the judge held. 

With these observations, Justice Godse while remitting the matter back to the Family Court to decide the issue afresh, ordered till final decision, that the physical custody of the child will be with the mother and that the father shall be granted temporary custody for the first half of the Diwali, Christmas and Summer holidays etc. 

Appearance:

Advocates Anjani Kumar Singh, Debarati Nag and Vaishali Dhuri represented the Father.

Mother Appeared As Party-In-Person. 

Case Title: SRB vs DA (Writ Petition 14746 of 2024)

Citation: 2026 LiveLaw (Bom) 419

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