Savitha Seetharam vs Rajiv Vijayasarathy Rathnam. M.FA. 1536/2017 decided on 11 September 2020. Justice B.V. Nagarathna and Justice N.S. Sanjay Gowda. Judgment link: http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/340069/1/MFA1536-15-11-09-2020.pdf
HELD: 8. Whenever, the husband and wife seek to dissolve their marriage, the conflict over the custody of the child, particularly a minor child, assumes significance. Whenever there is opposition by a party for giving custody of the child to another party and vice versa, the conflict can become extreme and aggravated sometimes resulting in dilution of any settlement that could be arrived at between the parties to seek dissolution of their marriage. One cannot underestimate the fact that in the case of separation of parents on account of dissolution of marriage by a decree of divorce, the children of the marriage are most affected physically, emotionally and their upbringing would take a beating.
9. One of the ways to resolve the conundrum is, by the emerging concept of shared parenting. In some overseas jurisdictions, the concept of shared parenting has been in vogue and prevalent but not so well entrenched in India and has been ordered only in a handful of cases. It is necessary to remind ourselves that a child requires both parents, the mother and the father in jointly bringing up the child which would have a holistic impact on the overall growth of the child. This is because both parents have a joint responsibility in bringing up their children as each parent would contribute in a unique way to the mental, physical and emotional/psychological development of the child. Hence, whenever there is a separation between the parents, shared parenting would mean that the joint responsibility would continue subject to certain arrangements being put in place.
10. In this context, it is necessary to understand two terminologies, namely, joint physical custody and joint legal custody. Joint legal custody means that both parents have equal rights and responsibilities towards the child including the child’s education and upbringing, whereas the joint physical custody would mean, both parents would share the physical custody of the child by spending equal time and having equal contact with the child.
The International Council on Shared Parenting (ICSP) at its conference held at Bonn, Germany, in July 2014 has arrived at certain areas of consensus as under:
(i) That “shared parenting” is defined to include both the shared parental authority (decision making) and shared parental responsibility for the day-to-day upbringing and welfare of the children, between both the parents keeping in mind children’s age and stage of development. Thus, “shared parenting” is defined as the presumption of shared rights in regard to the parenting of children by fathers and mothers who are living together or apart.
(ii)Shared parenting is a post-divorce parenting arrangement for the optimal development of the child including children of high conflict parents. That if there is a 50-50 parent time, it would be an optimal time that each parent could expect during week days or week-ends, as the case may be.
(iii) There is also a consensus that shared parenting orders could be passed even if one parent opposes it. As shared parenting is in consensus with International Human Rights and Constitutional Rights of the children to be raised by both their parents.
(iv)Any judicial discretion to be exercised by the Court must be in the best interest of the children.
(v) Though the shared parenting would not apply to situations where there is violence and child abuse or maltreatment of the child in any form including parental alienation.
(vi) Accessible network of family relationship centers that would render relevant support services and family mediation are necessary and vital for the success of shared parenting.
12. At the outset, it would be useful to refer to a decision of the Hon’ble Supreme Court in the case of Thrity Hoshie Dolikuka vs. Hoshiam Shavaksha Dolikuka, [(1982) 2 SCC 544], wherein it has been observed as under:
“17. The principles of law in relation to the custody of a minor appear to be well established. It is well settled that any matter concerning a minor, has to be considered and decided only from the point of view of the welfare and interest of the minor. In dealing with a matter concerning a minor, the court has a special responsibility and it is the duty of the court to consider the welfare of the minor and to protect the minor’s interest. In considering the question of custody of a minor, the court has to be guided by the only consideration of the welfare of the minor.”
14. The United Nations Convention of Rights of the Child, 1989 is an International Treaty which encompasses civil, political, economic, social, health and cultural rights of children, to which India is a signatory. The quintessence of the right of the child in the context of separated parents is that a child should not be separated from his or her parents against his will except when the court determines so in accordance with the applicable law, to the effect that such separation is necessary and in the best interest of the child.
15. Thus, the concept of shared parenting would assume greater importance after the divorce of parents by a dissolution of their marriage. Questions such as custody and visitation rights would then assume significance in the context of the responsibilities of the parents towards their children. Thus, the concepts such as “joint legal custody” or “joint physical custody” have emerged over a period of time in several legal regimes.
23 ….the principle of shared parenting which is defined to include shared parenting authority as well as shared parenting responsibility in the day-to-day upbringing and welfare of the children, as it has evolved over the decades, in the context of custody of minor children. The Hon’ble Supreme Court in a catena of decisions has held that in dealing with the matter concerning a minor, the Court has a special responsibility and it is the duty of the Court to consider the welfare of the minor and to protect the minor’s interest. Over a period of time, the concepts of custody and visitation rights have transformed themselves into the responsibility of parents towards children. A central theme of this transformation is the emphasis on parental responsibility which requires that the child should be treated as an individual having his or her own capabilities and limitations as well as independent opinions.
A child is not an appendage of his parents. The focus of attention must actually be on the child.
Compiled by S.Basavaraj, Daksha Legal.
Daksha Legal 