Mother's Work Commitments Don't Make Her Unsuitable For Child's Custody: Bombay High Court

A division bench of Justices SS Shinde and NJ Jamadar dismissed the husband's habeas corpus petition under Article 226 for custody of their minor son. However, the court allowed him visitation rights.

The man claimed his estranged wife is an "extremely busy actress," and not in a position to devote time and efforts for their child's sound upbringing. Conversely, he had decided not to undertake any professional commitment.

"In our view, the issue of welfare of the minor cannot be determined on the sole parameter of the work commitment of one parent and availability of ample time with another. The fact that respondent No.2(mother) is a busy actress, cannot be construed to unfavourably judge her suitability to have the custody of Master R," the court held.

Background

The now-estranged couple was married in 2013, and their son was born in 2016. The husband claimed that he was asked to leave the house after a marital dispute. As a result, his son was illegally kept away from him by the mother; therefore, he should immediately be given the child's custody.

The wife argued that she was working to support herself and her children and sought dismissal of the petition as not maintainable. She, in turn, made allegations against the husband.

"In the light of the material on record, we are of the view that there are no exceptional circumstances which would warrant a departure from "tender years rule," Nor there is such material which prima-facie indicates that the custody with respondent No.2(mother) is detrimental to the welfare and development of Master R," the court observed.

Tender Years Rule - According to Section 6 under the Hindu Minority and Guardianship Act, 1956, the father is the first natural guardian followed by the mother. However, in the case of minors below five, custody shall ordinarily lie with the mother.

Significantly, the court held that a writ of habeas corpus can be filed to grant a child's custody from one parent to the other if necessary for the child's welfare.

The court rejected the wife's counsel's argument on the habeas corpus petition being untenable once the mother produced the child before the bench via video conferencing.

"Undoubtedly, the court has to ascertain whether the custody of the child, in the circumstances of the given case, can be said to be unlawful or illegal. However, the matter does not rest at that point. The writ of habeas corpus can very well be pressed into service for granting the custody of a child to a spouse if the welfare of the child so dictates."

As a temporary arrangement, the court allowed the father a half-hour video call with the child each day and a physical meeting for two hours twice a week.

"Love and affection of both the parents are considered to be the basic human right of a child. Thus, the element of the access of the child to a non-custodial parent assumes critical salience."

Lastly, the court clarified that the parties could file appropriate proceedings for the child's custody, as the present plea was decided in writ jurisdiction. And allegations about the mother's work commitments creating a hindrance in the child's overall development could be decided through those proceedings.

"Before parting, we hope and trust that the petitioner and respondent no.2, who claim to be adept at playing characters, in reel life, act in the best interest of Master R, in real life. "

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