Forcing a toddler to spend six hours on court premises every Thursday under the guise of access to grandparents is “uncalled for and unjust”, the Gujarat High Court recently observed..The Court made the observation while allowing a plea filed by the mother of a two-and-a-half-year-old child challenging a family court order. The order had required her to bring the child to court every Thursday from 11 am to 5 pm to facilitate visitation with the paternal grandfather in a child custody dispute.Justice JC Doshi set aside the order, terming it “unfathomable”. The Court said that a minor aged barely two-and-a-half years had been made the subject of a custody dispute and had become a victim of an inhuman approach."This court finds that the view and approach of the learned Family Court is unfathomable. Barely two and half years aged minor has become the subject matter in a custody dispute and whereby, has become victim of inhuman approach," the High Court said.It observed that family courts must adopt a sensitive humane and child-centric approach while deciding custody matters.“The family court is expected to adopt a sensitive, humane and child-centric approach in a child custody matter, keeping in mind that such proceedings concern the welfare and future of a minor rather than the legal victory of fighting litigants. The court acts in the capacity of parens patriae and must exercise discretion with empathy, patience and sensitivity to the emotional needs of the child,” the Court added..It emphasised that the child’s physical, emotional, moral, educational and psychological welfare must be placed above the legal rights or claims of the parties.“The Court should evaluate the age and gender of the child, emotional bonding with each parent, stability of the home environment, educational and developmental needs and the wishes of the child, if of sufficient maturity,” the Court added..The High Court was hearing a plea filed by the mother challenging directions issued by the family court on a plea moved by the child’s paternal grandfather under the Guardian and Wards Act, 1890, seeking custody.The family court had directed the mother to remain present with the child on every working Thursday between 11:00 am and 5:00 pm. to facilitate access to the grandfather. It had also directed both parties to sit together during visitation, restrained the mother from bringing her second husband and required cooperation during the meetings.The grandfather told the Court that after the death of his son, the mother had remarried and shifted to her second matrimonial home with the minor without his consent. He argued that he had been completely cut off from access to the child and that the family court had passed a correct and proper order.However, the mother strongly opposed the plea. She argued that the approach taken by the family court was completely illogical. She contended that the family court is expected to act in the best interest of the child, but had instead taken a contrary approach. She pointed out that the minor, who is very young, does not leave her lap..The High Court agreed with the mother. It was observed that such a harsh and rigid approach was unacceptable, especially at an interim stage.“This kind of harsh and obdurate approach of the court is unacceptable. All that could be noticed that these kind of orders are passed at interim stage, without reading the evidence. The point of view of the learned Family court may not be biased, but at the same time, no less than parti pris. Under the circumstances, present petition deserves consideration,” the Court said.Considering the facts of the case, the Court allowed the mother's petition and set aside the order passed by the family court..Advocate Premal S Rachh appeared for the petitioner. Advocate Henil M Shah appeared for the respondent..[Read Judgment]
