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IN THE HIGH COURT OF KARNATAKA
B.V. NAGARATHNA, N.S. SANJAY GOWDA, JJ.
Savitha Seetharam - Appellant
Versus
Rajiv Vijayasarathy Rathnam - Respondent
M.F.A. No. 1536 of 2015 [GW]1 C/W.M.F.A. No. 137 of 2015 [GW/WC]
Decided On : 11-09-2020
GUARDIANSHIP - SHARED PARENTING - CUSTODY - VISITATION RIGHTS - WELFARE OF THE CHILD - SHARED PARENTING PLAN - FACTORS TO BE CONSIDERED - BEST INTEREST OF THE CHILD - PARENTAL RESPONSIBILITY - JOINT LEGAL CUSTODY - JOINT PHYSICAL CUSTODY - INTERNATIONAL CONVENTIONS - UNCRC - HAGUE CONVENTION - LAW COMMISSION REPORT - JUDICIAL PRECEDENTS - CASE ANALYSIS - FINAL DECISION
Fact of the Case:
The case involved a dispute between the parents of a minor child, Aditya Rajiv Ratnam, regarding his custody and visitation rights. The mother filed a petition under Sections 7 and 17 of the Guardians and Wards Act, 1890, seeking appointment as the guardian of the child and permanent custody. The father contested the petition, and the Family Court granted custody to the mother with visitation rights to the father. Both parents appealed the decision.
Finding of the Court:
The Court observed that the concept of shared parenting has emerged over the decades in various legal regimes, emphasizing the equal responsibilities of both parents in the custody of their children. The Court referred to international conventions, such as the United Nations Convention on the Rights of the Child (UNCRC) and the Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility for the Protection of Children, which emphasize the importance of shared parental responsibility and the best interests of the child. The Court also considered the Law Commission of India's report on adopting a shared parenting system in India, which recommended strengthening the welfare principle in the Guardians and Wards Act and providing for equal legal status of both parents with respect to guardianship and custody.
Issues: 1. Whether the petitioner-mother is entitled to be appointed and declared as the guardian of the minor child-Master Aditya Rajiv Ratnam? 2. Whether the petitioner is entitled for permanent custody of the minor child? 3. Whether the respondent is entitled for permanent custody of the minor child? 4. What order?
Ratio Decidendi: The Court held that the concept of shared parenting is gradually emerging in the legal firmament of India, recognizing the equal responsibilities of both parents in the custody of their children. The Court emphasized the importance of considering the best interests of the child and the welfare principles in determining custody and visitation rights. The Court also highlighted the need for a shared parenting plan that addresses major areas of decision-making, including education, healthcare, religious upbringing, and visitation schedules. The Court observed that shared parenting may not be suitable in all cases, particularly when one parent resides abroad or when there are concerns about domestic violence, child abuse, or neglect. However, the Court emphasized that the paramount consideration is the welfare of the child, and the Court must exercise its parens patriae jurisdiction to ensure that the child's best interests are protected.
Final Decision: The Court disposed of the appeals and issued detailed directions for shared parenting, considering the child's age, education, and the parents' circumstances. The Court directed that the child would reside with the mother from November to March and with the father from June to October each year. During the summer, Dasara, and winter vacations, the child would spend time with both parents equally. The Court also provided guidelines for visitation rights, communication between the parents, and the exchange of information regarding the child's health, education, and co-curricular activities. The Court emphasized the importance of stability, continuity, and a bond between the child and both parents and directed the parents to cooperate and ensure the child's psychological, social, educational, and overall growth and development.
JUDGMENT :
B.V. NAGARATHNA, J.:— These appeals have been preferred by the wife and husband respectively assailing order dated 21.11.2014 passed in G. & W. case No. 101 of 2012 by the III Additional Principal Judge, Family Court, Bengaluru. The said petition was filed by the wife (mother of minor child Aditya Rajiv Ratnam) under Sections 7 and 17 of the Guardians and Wards Act, 1890 (hereinafter referred to as ‘the Act’ for the sake of brevity) seeking appointment of herself as guardian of the minor child and to grant permanent custody to her. The said petition was contested by the husband/father of the child.
2. The mother of the child let-in her evidence as PW-1 and another witness (petitioner's mother) was examined as PW-2. She produced fifty documents which were marked as Exs.P-1 to P-50. The respondent/father of the child examined himself as RW-1. He produced ninety-five documents which were marked as Exs.R-1 to R-95. Thereafter, the Family Court raised the following points for its consideration:
(ii) Whether the petitioner is entitled for permanent custody of the minor child?
(iii) Whether the respondent is entitled for permanent custody of the minor child?
(iv) What order?”
3. The Family Court answered point Nos. 1 and 2 in the affirmative, point No. 3 in the negative and declared the mother as the guardian of the minor child Master Aditya Rajiv Ratnam and that the child shall continue to be under the care and custody of the mother. However, certain directions were issued regarding visitation rights for the respondent/father. Being aggrieved, both the parents of the child have preferred their respective appeals.
4. We have heard learned counsel for the respective parties in the presence of the parties and we also interviewed the minor child on 10.02.2020.
5. In the connected case M.F.A. No. 4749 of 2019, the parents had sought dissolution of their marriage by a decree of divorce by mutual consent and a petition under Section 13B of the Hindu Marriage Act, 1955 was filed in M.F.A. No. 4749 of 2019 and an application under Section 13B(2) was also filed seeking waiver of six months period stipulated under the said provision.
6. These, and other connected cases were adjourned from time to time in order to evolve a settlement between the parties who have been litigating for quite a few years before several fora, before the trial court and this Court as well as before the Hon'ble Supreme Court and also in the Courts of United States of America (USA).
7. The parties were granted a decree of divorce by mutual consent by judgment dated 27/08/2020 subject to the terms agreed upon by them. Clause (5) of the petition filed under Section 13B of the Act reads as under:
(underlining by us)
8. Whenever, the husband and wife seek to dissolve their marriage, the conflict over the custody of the child, particularly a minor child, assumes significance. Whenever there is opposition by a party for giving custody of the child to another party and vice versa, the conflict can become extreme and aggravated sometimes resulting in dilution of any settlement that could be arrived at between the parties to seek dissolution of their marriage. One cannot underestimate the fact that in the case of separation of parents on account of dissolution of marriage by a decree of divorce, the children of the marriage are most affected physically, emotionally and their upbringing would take a beating.
9. One of the ways to resolve
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