Tushar Vishnu Ubale vs Archana Tushar Ubale-Mumbai HC 2016

Mr. Tushar Vishnu Ubale vs Mrs. Archana Tushar Ubale on 15 January, 2016 (Joint parenting Parenting)


Facts of case

  1. The order dated 27.5.2015 passed by the learned Judge of the Family Court, Mumbai, in respect of directing the joint parenting plan by handing over six months custody of the child to each parent is challenged in this appeal.

  2. The petitioner/father is a Surgeon and the mother is working as a nurse.

Points of law raised

  1. Counsel for the Petitioner (father), submitted that the Family Court in its order had directed the parents to submit a joint parenting plan. She argued that the adopting joint parenting plan is a voluntary act of the parents. She submitted that the correct method was not adopted by the learned trial Judge to take forward the idea of joint parenting plan which is based on the report of the Law Commission report no.257 In which it has recommended reforming the Guardianship and Child Custody laws in India

  2. The learned Senior Counsel for petitioner (father) pointed out various sections of report of the Law Commission and submitted that though those are referred to, they are not properly considered by the learned Judge.

  3. Counsel for the Petitioner (father) further submitted that the learned Family court Judge has shown concern about making financial provision for the child. The father is going to deposit Rs.10,000/- and the mother will deposit Rs.5,000/- per month and thus, the child will have Rs.15,000/- per month in her account and for withdrawal of the said amount, the parents will have to come to the Court and seek permission of the Court. She submitted that this is not workable.

  4. Counsel for the respondent (mother) also relied on the report of the Law Commission. He submitted that the Family Court has relied not only on the Law Commission report but also a draft of the parenting plan which was approved by the High Court and which is put on the website of the Family Court.

  5. In reply to Counsel for the respondent (mother), the learned Senior Counsel for petitioner (father) submitted that Joint Parenting is different from joint custody. The Law Commission's report is not only on joint parenting plan but the suggestions are given in respect of changes in Guardian and Wards Act and custody. The Law Commission has laid down a number of aspects which the Judge has to take into account in respect of custody of a child and one of them is the joint parenting plan. However, she pointed out that in Clause no. 3.3.5 of the Law Commission Report, the Law Commission has expressed that they are not in favour of law placing presumption in favour of joint custody

HC observation and Points of law decided

Law Commission has mentioned and discussed the considerations for deciding child custody cases. These considerations are as follows:

  • actors to consider for best interest and standard

  • Determining the preference of the child

  • Access to records of the child

  • Grandparenting Time

  • Mediation

  • Relocation

  • Decision making

  • Parenting Plan

  • Visitation

  • These are the recommendations given by the Law Commission and that is not law and is not binding. The intention of the learned Judge of the Family Court to adopt these suggestions and also the High Court rules and chalk out a Parenting Plan is undoubtedly admirable. It shows that he was keen to experiment these new methods and apply to this case however, the learned Judge has used a mathematical formula in deciding the custody issue, which needs to be modified. The Law Commission wants the Judges working in the Family Court or handling the issues of guardians and wards to refurbish their fixed ideas and to have a makeover in their perceptions. In detail, various aspects are considered in the report.

  • Joint custody is provided as an option. Therefore, the Judges, who are working on the family laws and the issue of custody, should not hold a view that once the Law Commission has given the suggestion of a Parenting Plan, it is binding in all the cases to adopt the same. The parties are not to be compelled to give such plan which amounts to illegality. Parenting Plan is an option for both the parties.

  • Shared custody may be an option open for the court to offer parents and make them aware of not only their child's needs but also the child's rights. As argued by the learned Counsel for both the sides, the 257th report of the law commission is not only about shared parenting, but these are the recommendations on guardianship and custody laws in India, wherein under different chapters, the Law Commission has penned down its concept of joint custody, mediation in child custody cases and, also in chapter V, the considerations for deciding the child custody cases. Number of factors are to be taken into account in custody cases in the best interest of the child and parenting plan is one of these considerations.

  • The Judge has to use his/her worldly wisdom to find out at the time of interviewing the child whether child is a victim of the attitude of blackmailing parents emotionally.

  • One of the tests to ascertain a healthy and happy mind of a child is whether the child has love, affection and equal respect towards non- custodial parent or not. If it is found that a child is not willing to go to the non-custodial parent and complains continuously about the other parent, then it can be inferred that the child's mind might be poisoned and the child is tutored. This indicator can be applied to ascertain the healthy upbringing of the child. It is to be remembered that to have access to both the parents is the right of the child which prevails over the privilege of the parents to have custody or access. There is no statute granting any legal right upon any parent to have the child's custody in preference to or overriding the other. Therefore, the jurisprudence on the subject is taking into account the welfare of the "child" alone. In most of the cases, egos or incompatibility are the reasons for fights between the parents. They become selfish and the child is put to stake as a pawn by one parent to avenge the other. A person may be a bad husband or a bad wife, but he may not be a bad father or she may not be a bad mother. It is necessary for the fighting parents to understand and to bear in mind that the child loves both, needs both.

  • Separation is a shock for the child that his family has been destroyed. It gives rise to fear of the future as well as anger in the mind of children and they do not understand who should be blamed. There is a possibility of self blame and a feeling of guilt also. A majority of the children want contact with both the parents on regular basis and if it is denied, then, the children become hostile to the once loved but now non- custodial i.e., absent parent. If a custodial parent speaks badly about the the absent parent, the child tends to identify with that sentiment. Gradually a feeling that I can do without the absent parent develops and this gradual parental alienation becomes a part of the child's life and which may lead to social alienation which is in fact a deep trauma and not a healthy or happy circumstance. Alienated children often show contempt and withdraw affection whenever they are in contact with the parent. Physical estrangement adds to emotional alilenation.

  • Thus, Parenting Plan is a mutual arrangement of custody and access which is an outcome of matured parenting. The ideal situation is that joint parenting is a rule and single parenting is an exception. There may be a single mother or a single father left behind due to a blow of destiny, then, the child has no option. However, when both the parents are available, their association with the child cannot be artificially denied only due to fights and hatred and vindictive approach of the parents. Hence, though it is not mandatory that all the parents should adopt a Parenting Plan, it is advisable that the family Court to invite a Parenting Plan in the cases found suitable upon the Law Commission which has taken formal cognisance of the legal right involved in joint parenting. This, of course, may be attuned to circumstances and must account for the special needs of the particular child.

  • It is necessary to buttress that the word used is "parenting plan" and not "custody plan". Custody is a narrow term and parenting is a wider terminology which implies joint responsibility. Hence, it does not only contemplate physical handing of the child 50% to one parent and the other 50% to the other parent. A parenting plan must therefore take into account the "parental responsibility" as opposed to "parental rights" which are not statutorily granted. The aforesaid recommendations of the Law Commission must be read in that light. In the case of Smt.Anjali Kapoor vs. Rajiv Baijal (supra), the Supreme Court has referred to the observations of the New Zealand Court in Walker vs. Walker & Harrison reported in 1981 New Ze Recent Law 257, which are as under:

    • ...Welfare is an all encompassing word. It includes material welfare; both in the sense of adequacy of resources to provide a pleasant home and a comfortable standard of living and in the sense of an adequacy of care to ensure that good health and due personal pride are maintained. However, while material considerations have their place they are secondary matters. More important are the stability and the security, the loving and understanding care and guidance, the warm and compassionate relationships that are essential for the full development of the child's own character, personality and talents."

Considering the totality of the circumstances, I am of the view that the custody of the child shall at present essentially remain with the father because in this case, the child has stayed and has been brought up in the 17 / 20 wp.5403.2015(R).doc house of the father. I found this case as the best wherein the order of shared custody can be passed and implemented without much fights and opposition by the parents. Since about past 7 months, both the parents are having a shared parenthood and more access is given to the mother time to time so that the daughter can get used to her mother's home. The mother is to be given a sufficient period of custody each month during which she would be responsible for the upbringing of the child. The mother shall pick up the child on the first day of each month and have custody of the child continuously for 9 days and on the 10 th day after lunch or the school time drop the child at the father's house. The child shall live with the mother continuously during such period. The mother shall attend to the needs of the child. On the last day of such period, the child shall be sent either directly to the school or to the father. Thereafter, the mother will take the child on the third Wednesday of the month after school hours and will drop the child at the house of the father at around 1/2 pm or after lunch on the third Sunday. Thus, the child will not feel disconnected from the mother and there shall be continuous and simultaneous association with the mother. The child shall have the love, care and company of both the prents she loves for a reasonable stretch of days as also weekends. The school vacations shall, as is usual, be shared equally in this upon mutual arangement and understanding between the parties. Besides absent parent may call the child on phone 18 / 20 wp.5403.2015(R).doc morning and evening and may talk for 5 to 10 minutes. The parents shall have equal say on attending school meetings and on deciding child's education, day schedule, hobby classes without taxing child. The birthday of the child is to be celebrated together in the presence of the parents. In respect of the meeting of the other family members of both the sides and celebrations of important events in the family the both the parents being quite mature, will take the decision accordingly, keeping in mind the best interest of their child. Thus, complete flexibility in taking decisions on such issues is left to both the parents. In the event of dispute, the other party can approach the Court for necessary orders. This arrangement to continue till there is any drastic change of circumstance or dependency of psychological need of the child.

  • The arrangement of payment of Rs.10,000/- and Rs.5,000/- can be continued but there is no need to approach the Court for the purpose of withdrawal of the money. The amount can be withdrawn with the signature of both the parents. It should be a joint account under the joint guardianship, in the name of the child with both the parents as the first 19 / 20 wp.5403.2015(R).doc account holder. The amount can be withdrawn with the signature of the both the parents and only for the purpose of her education and maintainance if necessary. I do not think it is necessary to appoint a mediator in this case because I found the child mentally and physically healthy. If at all in future, if unfortunately, the necessity arises, then, the trial Court is always empowered to pass the required order.