Moralistic Sermon: Bombay High Court Finds Family Court’s “Pious Wife”, “Bahu” & "Janak Pita" Remarks In Child Custody Case Regressive

Setting aside the order transferring custody to the father, the Court permitted the mother to retain the child’s custody while directing regular physical and virtual access for the father.

The Court was hearing the mother’s appeal against a Family Court order passed under Section 12 of the Guardians and Wards Act, 1890, directing her to restore the minor child’s custody to the father and facilitating the child’s relocation to Singapore.

A Bench of Justice Bharati Dangre and Justice Ashish S. Chavan observed: “While remanding the matter back, this Court had observed that the Family Court had emphasised on the troubled relationship between the husband and wife. However, it seems that this observation did not have its desired effect as can be seen in the present impugned order. The Family Court has once again emphasized on the allegations and counter allegations between the mother and the father, rather selectively focusing upon the perceived faults of the Appellant-mother. Illustratively, there is an observation that the Appellant has forgotten that the Respondent is the ‘Janak Pita’ of their child and that she has not exhibited a single word that she is ready to ‘patch-up’ with him but is only expecting huge monetary assistance. It is rather perturbing that the Judge of the Family Court has proceeded to sermonize and set out the so called duties of a pious wife towards her husband as a basis to observe that it would be in the best interest of the child to be with his father.”

The Bench further added: “As if the aforesaid moralistic sermon was not enough, the Family Court uses proverbs to make casual stereotypical and generalized observations about relation between the minor child and his grandfather and makes scathing remarks against the Appellant on the basis of the fact that she is the ‘Bahu’ of the family. The observations of the Judge of the Family Court setting out the so called pious duties of a wife or expecting her to act as the ‘Bahu’ of the family are, to our mind not only unwarranted and unsubstantiated but also regressive which tend to perpetuate and reinforce stereotypical and erroneous notions about matrimonial relations. We cant help but observe that Judges, more than others should be mindful of being circumspect about making such observations, unconnected with the facts involved.”

Advocate Akshay Petkar appeared for the appellant. Advocate Abhijeet Sarwate appeared for the respondent.

Background

The child spent his formative years in Pune before the family moved to Singapore. After matrimonial disputes arose between the parents, the mother returned to Pune with the child, who thereafter remained continuously in her custody.

The father instituted proceedings under Section 7 of the Guardians and Wards Act, 1890 and sought interim custody under Section 12. The Family Court initially prescribed a visitation and access arrangement.

In the first round of appeal, the High Court remanded the interim custody application because the Family Court had focused on the parents’ troubled relationship without weighing their competing claims against the child’s welfare. The High Court directed a fresh determination of which parent was better placed to care for the child and under what circumstances.

During the intervening period, a Singapore Family Justice Court granted custody to the father. On remand, the Family Court relied on that order, the principle of comity of courts, the mother’s alleged conduct, the father’s financial position and the facilities available in Singapore. It directed the transfer of the child’s interim custody to the father.

The mother challenged that order, contending that it was founded on speculative allegations, untested electronic material and adverse findings unsupported by evidence. She argued that the child was settled in Pune and that his emotional, educational and psychological welfare had not been independently evaluated.

The father maintained that the mother had impeded his access and influenced the child against him. He also contended that the Family Court had complied with the High Court’s remand directions and appropriately considered the Singapore custody order.

Court’s Observations

The High Court explained that Section 12 of the Guardians and Wards Act, 1890 empowers a court to make an interim arrangement for the temporary custody and protection of a minor. It does not permit the court to virtually decide permanent custody without examining the immediate welfare requirements of the child.

Referring to Athar Hussain v. Syed Siraj Ahmed (2010), the Court observed that guardianship and custody were distinct questions. Even where a parent remained the natural guardian, the child’s welfare could justify custody with another person.

The Court observed: “From a plain reading of the aforesaid provision it is evidently clear that Section 12 deals with the power of the court to make an interlocutory order for the production of minor and interim protection of his person and property. This provision of law is in the nature of interim arrangement to direct the person having the custody of the minor to produce him and thereafter, make such order as the court thinks fit and proper for the temporary custody and the protection of the person or property of the minor.”

Immediate alteration of an existing custody arrangement required sufficient and compelling reasons. Stability and consistency in the child’s affairs and routine were also material considerations.

The Court found that the Family Court had again focused on the parents’ allegations against each other despite the earlier remand direction. Its remarks about reconciliation, monetary assistance and the duties of a wife concerned the matrimonial relationship and had no bearing on the child’s welfare.

The High Court held: “Moreover, the aforesaid observations in any event are concerned with the inter se conduct between the husband and wife and have nothing to do with the welfare of the child and to that extent are extraneous to the issue being adjudicated upon by the Family Court.”

It found that the Family Court had diverted itself from the required inquiry: an independent assessment of the child’s welfare and the factors affecting it.

The High Court noted that the Family Court acknowledged that certain allegations could be decided only after evidence but simultaneously relied upon those allegations to reach adverse findings against the mother.

For instance, it treated unproved WhatsApp communications as indicating that the child was being influenced against the father, despite recording that the electronic evidence required adjudication at trial.

The Court observed: “Such self-contradicting observations which are unsubstantiated and without any basis show that the Judge of the Family Court has based his findings on the foundation of his perceptions, notions, stereotypical beliefs about matrimonial relations and assumptions about human behaviour and not on the exercise that he was required to carry out viz. to independently assess as to who between the two parents was more suited to have the interim custody of the child.”

The Family Court also stated that financial capacity could not determine custody but then relied upon the father’s ability to provide a larger residence, domestic assistance and education under the Cambridge curriculum in Singapore.

The High Court held that the Family Court had not identified any imminent danger, neglect or other circumstance demonstrating that continued custody with the mother was detrimental to the child.

The High Court found that the Family Court had placed undue emphasis on the Singapore custody order and the principle of comity of courts.

Relying on Ruchi Majoo v. Sanjeev Majoo (2011), the Court reiterated that an Indian court exercising parens patriae jurisdiction must independently consider the child’s welfare, notwithstanding a foreign custody order.

The Court held: “We find that the Family Court has laid emphasis on the enforceability of the order of the Singapore Court on the principle of comity of courts without examining the overarching and predominant aspect of the welfare of the minor child which to our mind is an erroneous approach.”

The child had remained with the mother in Pune, attended school there and developed emotional bonds with his maternal grandparents, extended family and social circle. These circumstances were not meaningfully evaluated.

The High Court found no independent assessment of the child’s physical, emotional, educational or psychological welfare. The Family Court also failed to identify the material on which it concluded that custody had to be immediately transferred to the father.

The Bench observed: “We see no independent assessment carried out by the Family Court to determine the physical, emotional, educational or psychological welfare of the child which is contrary to the guiding principles set out by the Hon’ble Supreme Court while considering the interim custody of minor child in the context of Guardians and Wards Act, 1890.”

The Court concluded that the Family Court’s reasoning was based on irrelevant and extraneous considerations, inherent contradictions and stereotypical assumptions concerning matrimonial relations and human behaviour.

Conclusion

The Bombay High Court allowed the mother’s appeal and set aside the Family Court order transferring the child’s interim custody to the father. Since the child was already residing with the mother, she was permitted to retain custody.

The mother was directed to grant the father physical access once every three months and additionally during vacations or holidays by mutual arrangement, keeping the child’s convenience in mind. She was also directed to provide video-conferencing access at least once every week.

The Family Court was directed to decide the principal guardianship proceedings expeditiously and uninfluenced by the High Court’s observations. The connected contempt petitions were disposed of as no longer surviving.

Cause Title: KAG v. AAG (Neutral Citation 2026:BHC-AS:35988-DB)

Appearances

Appellant: Advocate Akshay Petkar; Advocate Abhishek Salian, instructed by Nyaaya Legal

Respondent: Advocate Abhijeet Sarwate

Click here to read/download Judgment