"Inhuman And Unfathomable": Gujarat High Court Quashes Family Court Order Mandating Toddler’s 6-Hour Visitation With Grandparents In Court Premises

The High Court noted that the minor is barely two and a half years old and, during court appearances, was "constantly crying" and unwilling to leave his mother’s lap.

The Bench of Justice JC Doshi observed, “Applying the settled legal position of law, at the end of the aforesaid discussion, 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 bocome victim of inhuman approach. The petitioner - mother who has just contracted second marriage is forced to visit the court along with the minor having age of two and half years old on every Thursday to have access to the respondent – original petitioner and that too at an interim stage. Such order forcing the petitioner mother and the minor to visit court premises on every Thursday under the guise of access to grandparents is uncalled for and unjust. A lot more can be said, but this Court restrained itself from observing further.”

Advocate Premal S Rachh appeared for the Petitioner, while Advocate Henil M Sha appeared for the Respondents.

The Court criticized the lower court’s "insensitive" approach in labelling a mother’s protective conduct—holding her crying child—as an "obstacle" to legal proceedings, reiterating that the judiciary must act as parens patriae to prioritize the child's best interests over the adversarial claims of litigants.

Facts of the Case

A writ petition under Article 227 was filed by the Petitioner-Mother seeking to set aside an order passed by the Family Court in a petition under Section 12 of the Guardian and Wards Act, 1890, by the Respondent seeking permanent custody of the minor son from the Petitioner-Mother. The original Petitioner/ Respondent is the grandfather of the minor.

The Family Court granted visitation and access rights to the grandparents under the following conditions: The mother is directed to produce the minor at the Family Court, Dhrol, every working Thursday from 11:00 a.m. to 5:00 p.m.; The access is to take place within the court premises. The mother and the grandparents are required to sit together, and the mother is expressly prohibited from bringing her second husband to these meetings and both parties are instructed to manage the child's meals within the court. The grandparents are permitted to give gifts, clothes, and toys, which the mother must allow the minor to accept and use.

Contention of the Parties

The mother challenged the Family Court’s order primarily on the grounds of procedural impropriety and jurisdictional excess. It was argued that Exh. 19 was merely a pursis (a written statement or declaration) and not a formal application for relief; therefore, the Family Court exceeded its authority by granting visitation rights that were never formally prayed for. Furthermore, the advocate contended that the court’s order specifically restrained the mother’s second husband—who is not a party to the legal proceedings—from being present, which is legally untenable.

Forcing a toddler, who is highly dependent on his mother, to remain in a cold, formal court environment from 11:00 a.m. to 5:00 p.m. every Thursday was argued as "illogical" and contrary to the child's best interests. The mother also pointed to subsequent orders that mandated celebrating the minor’s birthday within court premises as further evidence of an improper approach by the lower court.

Per contra, the grandfather said that the lower court’s order was a necessary measure to maintain the familial bond. He submitted that following the death of the respondent's son (the child's biological father), the mother remarried and moved to a new matrimonial home, effectively cutting off the grandparents from any access to the minor.

The Respondent maintained that the Family Court’s order is just and legal because it restores an emotional connection that had been severed without consent.

Observations of the Court

The Court said, “What further could be noticed from the impugned order that the minor is barely two and half years old. The minor, when was present before the Court, he was constantly crying and was intended to go outside with his mother and stepfather, which infers that the minor was not ready to leave an inch from the lap of his mother i.e. the petitioner - mother. The learned Family Court noted that the petitioner - mother is not leaving the minor from her lap for a single moment and such conduct is creating obstacle in obtaining Children Assessment Report. According to this Court, the finding of the learned Family Court is complete uncalled for and insensitive.”

It was also observed that in custody matters, the family court is required to adopt sensitive, humane and child-centric approach. It must construe that disputes over custody are not merely legal contests between the fighting party, but the issue is directly affecting the emotional, psychological, and developmental welfare of the child. The Court said that proceedings should be conducted in a manner that minimizes trauma, avoids hostility, and prioritizes the child’s welfare above the legal rights of the fighting litigants.

“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 Family Court must place the child’s physical, emotional, moral, educational, and psychological welfare above the legal rights or claims of the fighting litigants”, the Bench observed.

Conclusion

The High Court concluded that the Family Court failed to strike a "just and proper balance" between the grandparents' desire for access and the child’s psychological and developmental needs.

Accordingly, the Petition was allowed, and the impugned order was quashed and set aside.

Cause Title: Masiben v. Keshavjibhai Damjibhai Ghetiya [Neutral Citation: 2026:GUJHC:22011]

Appearances:

Petitioner: Advocate Sharath S Gowda

Respondents: Addl. SPP BN Jagadeesha

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