Custody orders cannot be made rigid and are capable of being altered keeping in mind the needs and welfare of the child at various stages of life, the Bombay High Court said, directing the family court to hear afresh an application filed by a man seeking to be appointed as legal guardian of his minor son after his former wife remarried.
A single bench of Justice Neela Gokhale in the order of May 4 noted that matters of custody of children are sensitive issues that require an appreciation and consideration of the nature of care and affection a child needs in the growing stages of life.
The order was passed in a petition filed by the 40-year-old man challenging an order passed by the family court rejecting his application filed under the Hindu Marriage Act seeking modification of an earlier order granting joint custody of the minor boy to both parents.
According to the man, in the consent terms filed in the divorce proceedings in 2017, he and his former wife had agreed that if either of them re-married then the other would get full custody of the child.
The Family Court had rejected the man’s application on the grounds that he ought to have filed the same under the provisions of the Guardians and Wards Act and not the Hindu Marriage Act.
The man in his plea said he was only seeking modification of the consent terms filed in the divorce proceedings.
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The high court set aside the family court order and directed it to hear afresh the man’s application seeking modification of the consent terms pertaining to the custody of the minor child.
Justice Gokhale in the order noted that the family court’s view was “far too hyper technical”.
HC said while the family court was correct in holding that the father ought to have filed a petition under the Guardians and Wards Act to seek his appointment as legal guardian of the child but an application under the Hindu Marriage Act filed by the father seeking modification of the earlier order was also “perfectly tenable”.
“Matters of custody of children are sensitive issues, requiring an appreciation and consideration to the nature of care and affection that a child requires in the growing stages of his or her life,” HC said.
It added that this is why custody orders are always considered as interlocutory orders and cannot be made rigid and final.
“They are capable of being altered and moulded, keeping in mind the needs of the child at various stages of life, including the circumstances of the parents in so far relating to the welfare of the child,” the court said in its order.
