Writ Petition No. 5403 of 2015. Case: Tushar Vishnu Ubale Vs Archana Tushar Ubale. High Court of Bombay (India)

Case NumberWrit Petition No. 5403 of 2015
CounselFor Appellant: Rajani Iyer, Sr. Adv. and Yogesh Pawaskar i/b. V.S. Kapse, Advs. and For Respondents: U.P. Warunjikar i/b. P.H. Gada, Advs.
JudgesMridula Bhatkar, J.
IssuePersonal Law
Judgement DateJanuary 15, 2016
CourtHigh Court of Bombay (India)

Order:

Mridula Bhatkar, J.

  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. They got married on 10.10.2008. It was an inter-caste and a love marriage, which was not approved by the parents of the mother. The child Mukta was born on 8.10.2009.

  3. Ms. Iyer, the learned Senior Counsel for the Petitioner, submitted that the 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. It cannot be directory. However there was a specific direction given by the Court so a joint parenting plan was submitted by both the parents and therefore the learned Judge ought not to have construed that the submission of such joint parenting plan was a consensual 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 submitted on 25.5.2015. It is submitted that the learned Judge has described the Law Commission report which was published on 25.5.2015 as an oven fresh report. However, after going through the Law Commission report, it appears that the learned Judge could not give himself time to deliberate upon it as the order was passed immediately i.e., on 27.5.2015.

  4. The learned Senior Counsel pointed out various suggestions of the Law Commission which are mentioned therein and referred to in the order. In clause 5.8, the Law Commission has stated about crystallization of the Rules as per the requirement of the child. It has proposed amendments in the Guardians and Wards Act. Then, in Chapter 11A of the Law Commission report, parameters are given by the Law Commission in respect of the custody issue of the child. These are also referred to in para 14 of the judgment. She submitted that though these are referred to, they are not properly considered by the learned Judge. She further pointed out paragraphs 106, 107 and 108 and also clauses 3.3.4 and 3.3.5 and in paragraph 3.5, in which the Law Commission has expressed that considering the prevailing distribution of roles assigned to the parents by the Indian society, the idea of shared custody may not be possible and the Court needs to weigh the circumstances accordingly. She pointed out that the learned Judge has straightaway divided the custody for six months between the father and the mother which is not at all good for a healthy upbringing of the child, who is more attached to the father. It is necessary for the Court to consider a degree of comfort of the child which is completely ignored by the learned trial Judge. The Law Commission has expressed that if at all the non-custodial parent relocates himself/herself where the school of the child is situated then it would be the material fact for considering joint custody. In the present case, the learned Senior Counsel submitted that the mother has relocated herself and has started residing at Chembur near the school of the child and the residence of the father. However, the Family Court should have considered what is the duration of the relocation, whether it is on the leave and licence, whether that residence is going to be available to the mother so that the child can stay there comfortably with the mother, etc. The suggestions of the parenting plan are required to be read in proper perspective. The Law Commission never intended shifting custody directly by 50% between the parents. While granting the custody, the Court has to consider the element of stability so also the element of inter-spacing with both the parents.

  5. She further submitted that the learned Judge has shown concern about making financial provision for the child. However, the arrangement made by the learned Judge is troublesome. As per the order, joint account of the parents is to be opened. 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. She further pointed out that the learned Judge has directed that in order to take care of the mental and physical health of the child, one mediator, who is a psychiatrist is appointed, so the child is to be referred to the Psychiatrist on the issues of dispute between the parents and the Mediator will have to report ultimately to the Court and seek the advice of the Court. She argued that approaching the Court for each and every decision or action is not feasible for the parties. The order of the access is given, however, if at all there is a default in giving the access, then, the defaulter is directed to pay cost of Rs. 1,000/-. Such rigid order cannot be passed in a custody issue but to make it workable, some flexibility is required. The father has submitted a parenting plan and mother has also given her parenting plan and as per the parenting plan of the mother, it is suggested that the custody of the child is to be given in alternate week to each parent. She argued that shifting of custody on alternate week is not a good suggestion but enhanced access can be substituted for the same. In respect of staying of the child in vacations such as Summer, Diwali and Christmas as also on festivals and some special days such as birthdays, can be worked out by consent. She submitted that since June, 2015, till today, the child has stayed with both the parents though the custody has remained with the father and the child is fine...

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