Family Court Must Adopt Sensitive Approach In Custody Cases, Prioritize Child's Welfare Above Litigants' Rights: Gujarat High Court

While considering a custody case the Gujarat High Court observed that in such matters family court must adopt sensitive and child-centric approach wherein proceedings are conducted in a manner which minimizes trauma and prioritizes child's welfare above the rights of the litigating parties. The court was hearing a mother's plea challenging a family court's order which had directed her to remain present on every working Thursday in the court along with her 2-and-a-half-year old son between 11:00 a.m. and 5:00 p.m. so that the minor's paternal grandfather can have access to the child. Further the family court had restrained the woman's second husband from being present along with her. Justice J C Doshi in his order said: "In custody matter family court is required to adopt sensitive, humane and child centric approach. The Family Court must construe that disputes over custody are not merely legal contests between the fighting party, but the issue is directly affecting the emotional, psychological, and developmental welfare of the child. The expression “sensitive approach” implies that the court must act as parens patriae—a guardian of the child's best interests—rather than strictly adjudicating adversarial claims. Proceedings should be conducted in a manner that minimizes trauma, avoids hostility, and prioritizes the child's welfare above the legal rights of the fighting litigants"The high court further referred to Supreme Court's decision in Gaurav Nagpal v. Sumedha Nagpal (2009) where the apex court defined the approach and duties of Court in a custody matters, holding that object and purpose of the Guardian and Wards Act, 1890 is not a mere physical custody of the minor but protection of the right of ward's health and welfare. The high court thus said that a “sensitive approach” in custody matters entails:(1) Prioritizing the best interests and welfare of the child above parental rights(2) Conducting proceedings in a non-adversarial and child-friendly manner(3) Considering emotional, psychological, and developmental factors and(4) Avoiding mechanical or technical application of law.It added, "The Family Court must place the child's physical, emotional, moral, educational, and psychological welfare above the legal rights or claims of the fighting litigants. The Court should evaluate age and gender of the child, emotional bonding with each parent, stability of home environment, educational and developmental needs and wishes of the child, if of sufficient maturity". The mother's counsel further contended that her second husband is not party to the proceedings, and yet, the Family Court in excess of its jurisdiction, passed the order against a non—party. The counsel said that after passing this order, the family court passed another order wherein the mother was directed to remain present before the Cluster Family Court on each working Thursday except holiday and she was directed to celebrate the minor's birthday in the Court premises.Meanwhile the counsel for paternal grandfather argued that subsequent to his son's death the mother had remarried and shifted to her matrimonial house with the minor boy without the paternal grandfather's consent. Hence he has been completely cut off from accessing his grandchild. It was submitted that high court under limited jurisdiction should not interfere with the family court's order which is otherwise just and legal order.The high court said that while the paternal grandfather had only moved a pursis and had not asked for the reliefs as claimed, the family court had granted visitation right plus temporary custody between 11:00 a.m. and 5:00 p.m. on each working Thursday. The high court noted that exhibit 19 in the record was a pursis whereby the paternal grandfather had declared some facts which is a unilateral declaration on his part. "Below pursis, the learned Family Court at the maximum can pass order of “Recorded” not beyond that. What further could be noticed from the impugned order that the minor is barely two and half years old. The minor, when was present before the Court, he was constantly crying and was intended to go outside with his mother and stepfather, which infers that the minor was not ready to leave an inch from the lap of his mother i.e. the petitioner - mother. The learned Family Court noted that the petitioner - mother is not leaving the minor from her lap for a single moment and such conduct is creating obstacle in obtaining Children Assessment Report," the court said.The high court said that this finding of the family court that the mother was not letting the minor leave from her lap for a single moment which was creating obstacle in obtaining Children Assessment Report, was "completely uncalled for and insensitive". It further said, "Barely two and half years aged minor has become the subject matter in a custody dispute and whereby, has bocome victim of inhuman approach. The petitioner - mother who has just contracted second marriage ...

Family Court Must Adopt Sensitive Approach In Custody Cases, Prioritize Child's Welfare Above Litigants' Rights: Gujarat High Court

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