Jharkhand High Court Sets Aside Shared Parenting Order; Says Welfare Of Child Overrides Father's Status As Natural Guardian

The Jharkhand High Court recently held that Section 6 of the Hindu Minority and Guardianship Act must be read in conjunction with Section 13, and that the welfare of the child remains the primary consideration even though the father is designated as the natural guardian. The Court set aside the Family Court's order directing a “shared parenting arrangement” and granting custody to the wife.A Division Bench of the Jharkhand High Court comprising Justice Sujit Narayan Prasad and Justice Arun Kumar Rai was hearing an appeal under Section 19(1) of the Family Courts Act against the judgment of the Family Court, which had dismissed the husband's application under Section 6 of the Hindu Minority and Guardianship Act seeking custody of the children and had instead permitted a “shared parenting arrangement”.Background: The marriage of the parties was solemnised on 26.06.2011 according to Hindu rites and customs and was duly registered before the Sub Registrar, Deoghar. A son, Amogh Raj @ Moon, was born on 23.08.2012, and a daughter, Anika, was born on 15.09.2017. After differences arose between the parties, the husband filed a suit for dissolution of marriage. During the pendency of the matrimonial proceedings, he approached the Family Court under Section 6 of the Hindu Minority and Guardianship Act seeking custody of both children.The High Court referred to the statutory framework under the Hindu Minority and Guardianship Act, 1956. The Court considered that Section 6 of the Act provided that, in the case of a boy or an unmarried girl, the natural guardian is the father, and after him, the mother. Interpreting this provision, the Court observed that the word “after” in Section 6(a) must be construed in a manner that saves the provision from unconstitutionality. The Court held:“110. It needs to refer herein that the word “after” as used in Section 6(a) of the Act, 1956 can be construed so as to save it from being unconstitutional the presumption being that the legislature acted in accordance with the constitution. Moreover, when Sections 4 and 6 of the Hindu Minority and Guardianship Act are construed harmoniously the word “after‟ can be understood to mean in the absence of, thereby referring to father's absence from the care of the minor's property or person for any reason whatever…It is evident from the mandate of the said Statute that although the father has been made natural guardian but how to make balance in awarding the custody of the minor, the wellbeing consideration even in the Statute has been mandated by inserting the provisions under section 13 thereof”The High Court noted that although the father is designated as the natural guardian under Section 6, the statute itself creates a balancing mechanism by mandating, under Section 13, that the welfare of the minor shall be the paramount consideration in determining custody. The Court held:“112. It is evident from Section 13 of the Act, 1956 that while appointing any person as guardian of a Hindu minor the paramount consideration is the welfare of the minor and no person shall be entitled to the guardianship by virtue of the provisions of this Act or of any law relating to guardianship in marriage among Hindus, if the court is of opinion that his or her guardianship will not be for the welfare of the minor… Section 13 of the Act of 1956 is very specific that there cannot be compromise on the issue of the welfare of the minor even though the father is natural guardian in view of the provision of section 6 of the Hindu Minority and Guardianship Act, 1956.Turning to the specific facts of the case, the Court noted that there were multiple litigations between the parties. It was undisputed that both parties resided in the same city, Deoghar, and that the children were currently living with their mother in the house of their maternal grandfather and attending school from there. Both children were minors, with the son aged 12 years and the daughter aged 8 years. The Court observed:“142. It requires to refer herein that high conflict between parents can negatively impact a child in shared parenting, and courts consider this risk, prioritizing a child's welfare above all else. The shared parenting may be beneficial but it is not suitable for every family, especially in cases of extreme conflict which is the case herein. Further it is not healthy for a child to move between two homes and a stable, anchored home is the best option in relation to his/her study and other future prospects.”In the instant case, the relationship between the parties was admittedly strained, with five cases pending between them. The Court held that such a high-conflict parental relationship can lead to instability, heightened anxiety, and poor health outcomes for the child. Accordingly, the Court held that the shared parenting arrangement was not sustainable. Instead, it permitted the respondent-father to have visitation rights while the children remain in the custody of the...

Jharkhand High Court Sets Aside Shared Parenting Order; Says Welfare Of Child Overrides Father's Status As Natural Guardian

Rushil Batra

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