'No Time With Mother': Punjab & Haryana High Court Declines Custody To Working Mother Living In PG

The Punjab and Haryana High Court has declined custody of a minor child to a working mother residing as a paying guest, holding that she had no sufficient time or support system to care for the child, while reiterating that shared parenting best serves the child's welfare.

Justice Gurvinder Gill and Justice Ramesh Kumari said, "in the case in hand, both wife and husband are working parents. parents It is a fact that both the parents being working, cannot be expected to be available round the clock to the child but in their absence, there must be someone to look after and to take care the child. The learned trial Court rightly held that "she she has not apprised the Court as how she is going to keep the child in case, the custody of the child is granted to her. The petitioner is serving in the department from 10:00 AM M TO 6:30 PM."

"There is no time with the petitioner. There is nothing on record that any member of the family is staying with her since 2011. On the other hand, the father is residing with his family family.. He has better accommodation consisting of four rooms than wife, who is staying as paying guest. She has not examined her mother to prove that her mother shall be available for the child to take care of him in her absence," it added.

Considering all these factors the bench opined that, trial Court rightly declined to hand over the custody of the child to wife.

Therefore, the husband was allowed to be primary care giver of the child. Since the parties are ad idem for shared parenting of the child, this Courtt deems it fit to enhance the visitation rights in favour of the wife.

The bench also reiterated that shared parenting is for the best interest of the child as the presence of mother and father is important for the proper mental, physical physical and emotional growth of the child. Shared parenting means both the parents take joint decisions for the child and share financial and other responsibilities. This also involves both the parents take joint decisions regarding the health, safety, choice of school, extra-circular circular activities, social and religious life of the child.

The appeal arose from an order dated May 30, 2024, passed by the Family Court, dismissing the wife's petition under the Guardians and Wards Act, 1890 and the Hindu Minority and Guardianship Act, 1956 seeking custody of her minor son.

The Family Court had allowed the child to remain in the custody of the father while granting limited visitation rights to the mother twice a month.

The wife alleged that she was subjected to cruelty and was forcibly thrown out of the matrimonial home in September 2023 while she was breastfeeding the child. She claimed that she was thereafter denied access to the child despite repeated efforts and even police intervention.

The husband, on the other hand, denied the allegations and contended that the wife had voluntarily left the matrimonial home and had shown disinterest in the child's welfare. He further alleged misconduct on her part and asserted that the child was being well cared for in a stable family environment.

The Family Court denied custody to the mother primarily on the ground that she was residing as a paying guest with no stable arrangement for the child. She had not demonstrated who would care for the child during her working hours.

The father had a more conducive family environment with extended family support and a nanny, it added.

Affirming the Family Court's reasoning, the High Court reiterated that custody disputes are not to be decided on the basis of competing parental rights but on the child's welfare.

“A child cannot be a battleground for opposing claims of a warring couple.”

The Court noted that the mother failed to establish a concrete caregiving arrangement for the child, particularly in light of her working hours and living conditions as a paying guest.

In contrast, the father was residing with his family in a multi-room accommodation, where the child was being cared for by multiple family members along with a nanny.

Best Interest Of Child Paramount

The Bench relied on settled Supreme Court jurisprudence, observing that “welfare” includes not just physical comfort but emotional, psychological, and social well-being of the child.

It held that although ordinarily custody of a child below six years may be with the mother, such a principle cannot be applied mechanically and depends on the facts of each case.

Shared Parenting & Modified Visitation

Noting that both parents expressed willingness for shared parenting, the Court enhanced the mother's visitation rights and introduced a structured arrangement:

The mother will have overnight custody of the child three times a month (first, second, and third Saturdays to Sundays) and flexibility to adjust visitation by mutual consent. Equal participation of both parents in educational decisions.

Equal sharing of school holidays and festivals and Child's birthday to be celebrated jointly.

Neither parent to take the child abroad without consent of the other and both parents restrained from influencing the child negatively against each other.

The Court also stressed the importance of cooperation between parents, “The welfare of the child lies in a harmonious environment… parents must not allow their personal disputes to hinder the child's emotional and mental development.”

Mr. Salli Bali, Sr. Advocate with Mr. Jaiveer Bali, Advocate, Ms. Archana Chauhan, Advocate and Ms. Aarti Singh, Advocate for the appellant.

Mr. Sunil Chadha, Sr. Advocate with Mr. Kunal Muthreja, Advocate and Mr. Tara Dutt, Advocate for the respondent.

Title: SXXXXX v. RXXXX