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The Bombay High Court recently, dealing with a child custody battle, observed that a child needs the love and affection of both the parents.

The mother of the child had approached the high court against an order of the trial court permitting the father to have overnight access to the child.

A vacation bench of Justice Milind N. Jadhav upheld the trial court order and emphasized that children need the love, understanding, and company of both the parents for their healthy growth.

Justice Jadhav opined, “The parties, in this case, should not forget that both parents have common responsibilities, most importantly being together would be an ideal case but even if they are separated they still have to helm the primary responsibility of upbringing and development of the child. For this, the child requires love, affection, and quality time to be spent with both the parents. Leaving apart the acrimony between the parties before me, at this stage, the most important focus should be aimed at the development of the child..”

Court further observed, “What is important to be seen is whether the child has love and affection towards the parents rather than the other way round.”

As per the petition, the couple got married in 2012, a child was born in April 2015 and the parties have been staying separately since September 2016. The Petitioner (women) had initiated the process for the divorce under the Special Marriage Act, and also sought relief regarding custody and maintenance.

During the pendency of the divorce proceedings between the parties, the Family Court granted the father overnight access to the child from May 17, 2022, to May 30, 2022 and the same was challenged by the mother in the High Court in the present case.

Justice Jhadav, after interacting with the child in his chamber, stated that from the child's demeanor and body his bond with his father is strong.

He noted,  “If the Petitioner has a genuine apprehension then such an apprehension has to be backed by cogent material... There is not a singular incident that I have come across while reading the entire record to compel me to believe that the apprehension of the Petitioner is well-founded. Just as the Petitioner is the mother of the child it should not be forgotten that the Respondent is his father and from the record, it is clearly gathered that he is a doting father.”

He further added that "there was no trust deficit between the two or any fear is shown by the child.”

Court modified the dates on which access was granted to the father since 7 days had already elapsed after the family court order. The child has now been permitted to remain with his father from May 24, 2022, to June 5, 2022.

“It is directed that the petitioner shall hand over the custody of the child to the Respondent on 24th May 2022 at 03.00 p.m. at the Respondent's house i.e. below the building of the Respondent's house along with his clothes and necessities required for 13 days stay and the child shall remain with the Respondent up to 05.06.2022. The respondent shall return the child to the Petitioner at 3:00 pm on 05.06.2022,” directed court.

Court further said that “during the period of overnight access, the Respondent shall not travel outside India or attempt to take the child outside India for any trip or holiday outside the county. Respondent is to take proper care of the child and allow the child to speak with the Petitioner at least two times in a day i.e. once in the morning/afternoon time and once at night before going to bed or as per the child's wish.”

Case Title: WRIT PETITION NO. 6070 OF 2022