The Bombay High Court has held that custody orders cannot be made rigid and can be altered considering the needs of the child at various stages of life.

The bench of Justice Neela Gokhale observed that matters of custody of children are sensitive issues, requiring an appreciation and consideration to the nature of care and affection that a child requires in the growing stages of his or her life.

Thus the Court held “…custody orders cannot be made rigid and final. They are capable of being altered and moulded, keeping in mind the needs of the child at various stages of life, including the circumstances of the parents in so far relating to the welfare of the child.”

The Court made this observation while dealing with the plea of a father challenging the Family Court’s Order rejecting his plea to modify custody consent terms to the extent that he be declared as a sole, permanent and legal custodian and guardian of his minor son.

Advocate Aarti Sathe appeared for the petitioner.

The Court observed that the Family Court was too hyper technical.

“The Family court is correct in holding that the Petitioner must file a petition under the Guardian and Wards Act, 1890 to seek his appointment as legal guardian of the child. However, in so far as the prayer relating to modification of the order is concerned, an application under Section 26 of the HMA is perfectly tenable.”, the Court said.

The Court held that “The application for modification of consent terms in respect of custody and access of minor child…..has been admittedly made under provisions of Section 26 of the HMA read with the provisions of other statutes including Section 151 of the CPC. As far as the prayer seeking appointment of the Petitioner father as guardian of the child is concerned, the learned Family Court is correct in holding that relief in respect of guardianship of child may be sought under the provisions of the special statute namely Guardianship and Wards Act, 1890.”

The Court directed the Family Court to hear the application for modification/variation of the consent terms or any other modification relating to the custody and access of the minor child.

Cause Title- KJ v. KAU

Click here to read/download Judgment