Contention By One Spouse That The Other Is A Complete Villain Should Not Ordinarily Be Accepted In Custody Cases: Delhi HC Says Child Can't Be Made 'Football'

The Court held that a parent cannot take a stand to deprive the child of the love, affection and bonding of the other parent, and courts cannot be a party to such an understanding.

Update: 2026-10-21 14:30 GMT

The Delhi High Court has held that parents cannot enter into mutual settlement agreements to completely deprive a minor child of the love, affection, and presence of either parent, emphasizing that a child cannot be made a "football" between feuding spouses to their own detriment.

Dismissing an appeal against a Family Court order granting limited visitation rights to a father, it was ruled that courts exercising parens patriae jurisdiction cannot encourage agreements that operate against the best interests and overall development of the child.

The Division Bench of Justice Subramonium Prasad and Justice Renu Bhatnagar observed, "A contention by one of the spouses that the other spouse is a complete villain and that spouse alone is entitled to the custody of the child should not ordinarily be accepted and courts must be wary of such a stand taken by one of the parties. A child of 15 years of age requires guidance of a father and the love and affection of the mother and this is a basic right of any child and such right cannot be denied by parents and more particularly by the courts. It is often stated that a child cannot be made as a football between two parents at his/her own detriment."

Advocate Dalip Kumar Santoshi appeared for the Appellants, while Advocate Sauraj Yadav appeared for the Respondent

Matrimonial disputes arose between the Appellant/Wife and the Respondent/Husband and proceedings under Section 12 of the Protection of Women from Domestic Violence Act, 2005 were initiated by the Appellant.

The parties entered settlement with the agreement to dissolve their marriage seeking divorce by mutual consent without levelling any allegations against each other and the Respondent herein agreed to pay a sum of Rs.5 lakhs to the Appellant wife qua settlement of all her claims.

Vide agreement, the parties agreed that the visitation rights were given to the father for the 2nd Saturday of every month for a period of three hours at the Children's Room in the court premises. In the supplementary settlement agreement arrived at between the parties during the same proceedings, however, the visitation arrangement agreed upon between the parties was only till the passing of the decree of divorce.

Subsequently, the Family Court while dealing with an application under Section 12 of the Guardians & Wards Act, whereby the Respondent was granted a limited visitation right to their minor child by the learned Family Court on every 1st and 3rd Saturday of every month from 3:00 PM to 5:00 PM in the Children Room, Family Court, North-West, Rohini, Delhi.

The Court expressed its displeasure in the manner in which the settlement has been arrived at between the parties.

"The parties amongst themselves cannot agree to deprive a child of the presence of a father/mother by mutual agreement. Such an agreement affects the growth and development of the child and this Court is of the opinion that the presence of both parents is necessary for the proper development of any child. Therefore, it is directed that in any mediation settlement between the husband and wife, a mutual agreement by which one of the parties decides to abdicate his/her responsibility as a father/mother cannot be accepted", the Court observed.

The Court held that the doors of a parent cannot be shut to the detriment of a child, and the courts, in exercise of their parens patriae jurisdiction, cannot encourage such kinds of settlement agreements which operate to the prejudice of the child.

"No doubt, the custody can be given to either of the parent but to completely deprive the child of one of the parents cannot be permitted by the courts. A child is a victim in any custody battle and in the acrimony between the husband and wife, the child cannot be made a victim. One parent cannot take a stand to deprive the child of the love, affection and bonding of other parent and courts cannot be a party to such an understanding", it added.

The Court relied on the judgment of the Supreme Court in Rosy Jacob v. Jacob A. Chakramakkal, (1973) and reiterated that orders concerning the custody of minor children are temporary in nature and remain subject to variation in the best interests and welfare of the child, even if passed on consent decree. It added that such orders cannot be regarded as immutable or allowed to operate as a fetter upon the Court’s continuing duty to secure the child’s welfare, which remains the paramount consideration.

Accordingly, the Court refused to interfere with the order passed by the Family Court.