As per case facts, a custody dispute arose between Snehasis Rashbihari Batabyal (father) and Dolan Acharya (mother) concerning their minor son following their mutual consent divorce. Initial custody terms were ...
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1-WP-14746-2024-IA-236-2025.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 14746 OF 2024
WITH
INTERIM APPLICATION NO. 14317 OF 2024
WITH
CONTEMPT PETITION NO. 474 OF 2025
Snehasis Rashbihari Batabyal }
Indian inhabitant of Mumbai, }
Residing at 3404, “ Torino” Apartment. }
South Avenue, Hiranandani Gardens, }
Powai, Mumbai – 400 076. } … Petitioner/Applicant
Versus
Dolan Acharya }
Indian inhabitant of Mumbai, }
Residing at Phase – I, Wing A-1801, }
Lake Homes, Powai, Mumbai – 400 076. } … Respondent
WITH
INTERIM APPLICATION NO. 9137 OF 2025
AND
INTERIM APPLICATION NO. 236 OF 2026
IN
WRIT PETITION NO. 14746 OF 2024
Dolan Acharya }
Indian inhabitant of Mumbai, }
Residing at Phase – I, Wing A-1801, }
Lake Homes, Powai, Mumbai – 400 076. } … Applicants
IN THE MATTER BETWEEN
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Varsha
VARSHA
VIJAY
RAJGURU
Digitally
signed by
VARSHA
VIJAY
RAJGURU
Date:
2026.09.01
14:18:14
+0530
1-WP-14746-2024-IA-236-2025.doc
Snehasis Rashbihari Batabyal }
Indian inhabitant of Mumbai, }
Residing at 3404, “ Torino” Apartment. }
South Avenue, Hiranandani Gardens, }
Powai, Mumbai – 400 076. } … Petitioner
Versus
Dolan Acharya }
Indian inhabitant of Mumbai, }
Residing at Phase – I, Wing A-1801, }
Lake Homes, Powai, Mumbai – 400 076. } … Respondent
WITH
WRIT PETITION NO. 7796 OF 2025
WITH
WRIT PETITION (ST) NO. 18398 OF 2026
Dolan Acharya }
Indian inhabitant of Mumbai, }
Residing at Phase – I, Wing A-1801, }
Lake Homes, Powai, Mumbai – 400 076. } … Petitioner
Versus
Snehasis Rashbihari Batabyal }
Indian inhabitant of Mumbai, }
Residing at 3404, “ Torino” Apartment. }
South Avenue, Hiranandani Gardens, }
Powai, Mumbai – 400 076. } … Respondent
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Mr. Anjani Kumar Singh i/b. Mrs. Debarati Nag a/w. Ms. Vaishali R
Dhuri in CP/474/25 a/w. WP/14746/24 a/w. IA/14317/2024 in
WP/14746/24 a/w. IA/9137/25 and IA/236/26 in WP/14746/24 for
Petitioner and for Respondent in WP/7796/25 and WP(L) No.
18398/2026.
Mr. Snehasis Batabyal, Petitioner, present.
Ms. Dolan Acharya in person.
CORAM : GAURI GODSE, J.
RESERVED ON : 23
rd
JULY 2026
PRONOUNCED ON : 1
st
SEPTEMBER 2026
JUDGMENT :-
BASIC FACTS:
1. The dispute in these proceedings concerns custody of the
minor son of the parties, who is approximately 14 years old. The
petitioner in Writ Petition No. 14746 of 2024 is the father of the minor
child, and the respondent is the mother. For the sake of convenience,
the said parties are referred to as ‘father’ and ‘mother’ respectively.
2. Writ Petition No. 14746 of 2024 is filed by the father to
challenge the judgment and order dated 20
th
September 2024 passed
by the Family Court, Mumbai in Miscellaneous Application No. 5 of
2024 in Petition No. A-656 of 2016. Interim Application No. 14317 of
2024 is filed by the father seeking a stay on the implementation of the
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impugned judgment and order dated 20
th
September 2024. Contempt
Petition No. 474 of 2025 is filed by the father alleging breach of the
order dated 6
th
May 2025 passed by this Court in Interim Application
No. 14317 of 2024. In the Contempt Petition, it is alleged that the
mother committed breach of the order where a stay was granted by
this Court to the implementation of the impugned order that directs
the father to hand over custody of the minor child to the mother.
3. Writ Petition(st) No. 18398 of 2026 is filed by the mother,
partially aggrieved by the judgment and order dated 20
th
September
2024 and challenges the directions issued in clauses (3),(8),(10) and
(11) of the operative order of the said judgment. The Writ Petition No.
7796 of 2025 is filed by the mother to challenge the order dated 29
th
May 2025 passed by the family court in Regular Darkhast No. 142 of
2025. By the impugned order in this petition, the father’s application
for physical custody of the minor child is allowed, and the mother is
directed to hand over the minor child's custody to the father. By the
said order, the mother was permitted to avail access to meet the child
on the second weekend of June 2025. Regular Darkhast No. 142 of
2025 is filed by the father seeking custody of the minor child with
police help alleging non-compliance with the Order dated 20
th
September 2024.
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4. Interim Application No. 9137 of 2025 is filed by the mother in
Writ Petition No. 14746 of 2024 for vacating the interim relief granted
on 6
th
May 2025 by this Court. Interim Application No. 236 of 2026 is
filed by the mother in Writ Petition No. 14746 of 2024, seeking
directions to the father to make payment towards school and
educational fees and the expenses of the minor child pursuant to the
impugned judgment and order dated 20
th
September 2024.
5. This Court had passed an order dated 23
rd
June 2025, in
Interim Application No. 14317 of 2024, directing the matter to be
listed for final disposal in view of the directions issued in the order
dated 6
th
May 2025. This Court had interviewed the child and had
recorded in the said order dated 23
rd
June 2025 that during the
interaction with the minor child in the chamber, he had expressed his
desire to go back to his mother’s house. The petition was directed to
be listed for final disposal. The father had challenged the said Order
dated 23
rd
June 2025 and Order dated 15
th
July 2025 in Contempt
Petition No. 474 of 2025 before the Apex Court. By the said Order
dated 15
th
July 2025, the contempt petition was directed to be listed
with the writ petitions scheduled to be due on 17
th
July 2025. The
Special Leave Petition was disposed of on 8
th
August 2025, granting
liberty to the father to seek expeditious disposal of the Writ Petition
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No. 14764 of 2024. It was directed by the Apex Court that if such a
request for expeditious disposal was made, the matter be disposed of
within six weeks.
6. Since the regular bench had recused from the matter, it was
listed before this Court on 26
th
August 2025 as an alternate bench. In
view of the directions issued by the Apex Court, this Court fixed the
matters for final disposal on 18
th
September 2025. In view of a
change in the assignment, an application was filed on the
administrative side for listing of the petitions before the same court.
The petitions were thereafter adjourned awaiting the order on the
application filed on the administrative side. In view of the
administrative order dated 6
th
March 2026, all the petitions were listed
before this court on 2
nd
April 2026. The petitions were heard and
adjourned to 9
th
April 2026 as part heard.
7. Thereafter, the parties had agreed that the child would meet
the father at an independent place. Accordingly, directions were
issued to enable the father to meet the child. After hearing the parties
for some time, they had agreed to attend the counselling sessions
through the Sukoon Project of the Main Mediation Centre.
Accordingly, the parties were referred for counselling. Unfortunately,
the counselling sessions were not concluded as the parties had
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expressed different versions about the sessions. Hence, the petitions
were substantially heard on 8
th
May 2026. The parties were unable to
conclude their arguments, and they intended to make further
submissions. Hence, by consent, the petitions were directed to be
listed on 8
th
June 2026, the first day of the reopening after summer
vacation. The directions were issued by consent to enable the father
to meet the child in the meantime. The petitions were thereafter
substantially heard on 8
th
June 2026, 11
th
June 2026, 12
th
June 2026,
18
th
June 2026, 25
th
June 2026, and 2
nd
July 2026. The arguments
were finally concluded on 23
rd
July 2026, and the matters were
reserved for judgment.
PARTICULARS OF THE LITIGATION:
8. The father had filed Petition No. A-656 of 2016 for dissolution
of marriage under Section 27(1)(d) of the Special Marriage Act, 1954.
The parties filed consent terms, and the divorce petition was
converted into a petition under Section 28 of the Special Marriage Act
for dissolution of marriage by mutual consent. At that time when the
divorce petition was filed, the child was with the father. By order dated
1
st
February 2020, the parties were permitted to convert the divorce
petition into a petition for divorce by mutual consent. The consent
terms dated 15
th
May 2017 at Exhibit 46, the modified consent terms
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dated 18
th
July 2017 at Exhibit 56, and the final consent terms dated
21
st
December 2019 at Exhibit 85 were directed to be made part of
the decree in the petition for divorce by mutual consent. Accordingly,
by order dated 1
st
February 2020, the marriage between the parties
was dissolved by a decree of divorce by mutual consent under
Section 28 of the Special Marriage Act.
9. Pursuant to the consent terms at Exhibit 46, the parties
agreed to joint custody of the minor child, with physical custody with
the mother. At the time the said order was passed, since physical
custody was with the father, the parties had agreed to hand over
custody of the minor child to the mother on or before 2
nd
June 2017.
The father had agreed to pay Rs. 35,000/- towards monthly
maintenance for the child, and he also agreed to take care of the
educational expenses up to the post-graduation of the child. The
father had also agreed to bear the child's medical expenses.
10. The parties had further agreed that the residential flat, i.e.
matrimonial home, standing in the name of the father, would be gifted
to the mother to the extent of 50%, and 25% share would be gifted in
the name of the minor child; 25% share would be retained by the
father. The father had also agreed to repay the housing loan of the
said flat. The parties had agreed to execute the gift deed, and after its
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execution, the mother had agreed to withdraw the criminal case,
including proceedings filed under the Domestic Violence Act and
police complaints. The father had also agreed to transfer the car into
the mother’s name.
11. The said consent terms were modified by the executing
modified consent terms dated 18
th
June 2017 filed on record at
Exhibit 56. In view of the modified terms, the father agreed to clear
the balance of the housing loan within four months and to execute the
gift deed in the names of the mother and the minor child in
accordance with the agreed shares. The parties also agreed that in
the event the mother intended to sell the flat, the sale proceeds would
be distributed as per the agreed shares in the earlier consent terms
and the new flat would be purchased in the name of the mother and
the son to the extent of 2/3
rd
share with the mother and 1/3rd share
with the child. The father accordingly agreed to hand over custody of
the child to the mother on or before 23
rd
July 2017.
12. The parties thereafter recorded final consent terms dated
21
st
December 2019 at Exhibit 85. In the final consent terms at Exhibit
85, the parties noted that, in compliance with the earlier consent
terms, the father handed over physical custody of the child to the
mother. It was recorded that the entire outstanding home loan was
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repaid and the gift deed dated 25
th
September 2017 was executed in
the name of the mother and the son. In view of the said gift deed, the
father had gifted 50% of the share to the mother and 25% share to
the son. The father had agreed to pay Rs. 8,00,000/- towards child
maintenance, and the mother had agreed to hand over the child’s
custody to the father, with sole authority and responsibility for the
child given to the father. The mother had agreed to withdraw all the
criminal complaints.
13. The mother thereafter filed Miscellaneous Application No. 70
of 2021, seeking visitation rights to meet the child. The parties again
arrived at an amicable settlement, and the consent terms were signed
at Exhibit 10 in Miscellaneous Application No. 70 of 2021. As per the
full and final settlement arrived at between the parties as recorded at
Exhibit 10, they agreed that the said terms would be considered part
of the final consent terms at Exhibit 85. The Miscellaneous
Application No. 70 of 2021 was accordingly disposed of on 11
th
November 2021. The mother was given
access to the child and 50%
of the summer and winter vacation.
14. The mother had filed Petition No. D-139-2023, for custody of
the minor child. She also filed Regular Darkhast No. 4 of 2024 for
implementation of the 11
th
November 2021. The mother thereafter
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filed Miscellaneous Civil Application No. 5 of 2024, in Divorce Petition
No. 656 of 2016. She applied for modification of the decrees dated
1
st
February 2020 and 11
th
November 2021. The mother prayed for
sole and permanent custody of the child. By the judgment and order
impugned in these petitions, the said Miscellaneous Application No. 5
of 2024 is finally decided. Learned Judge of the family court partly
allowed the application and modified the decree dated 11
th
November
2021 in Miscellaneous Application No. 70 of 2021. Learned Judge of
the family court came to the conclusion that the joint parenting would
be necessary as desired by the child. The learned Judge therefore
directed that both parents were entitled to joint parenting of the child
and 50:50 vacation time, with the child's ordinary residence with the
mother from the next school academic year.
The mother was made
responsible for the custody, care, safety, and security of the child
during the child's ordinary stay with her, for the child's maintenance
expenses, and for 50% of the child's educational expenses. The
father was held responsible for paying 50% of the child’s school fees
and educational expenses.
15. The father is aggrieved by the aforesaid modification. The
mother had initially never raised any objection to the impugned order.
However, after this Court partially heard the matter, she filed a petition
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challenging the directions in clauses (3), (8), (10), and (11) of the
aforesaid order.
SUBMISSIONS ON BEHALF OF THE FATHER:
16. Learned counsel for the father submits that the mother
willingly handed over physical custody of the child to the father by
accepting Rs. 8,00,000/- as recorded in the final consent terms dated
21
st
December 2019. He submits that the child was 7 years of age at
that time. The father agreed to execute the gift deed by transferring
the 25% share he retained in favour of the mother. The father also
agreed to pay Rs. 8,00,000/- to the mother. Accordingly, the mother
handed over physical custody of the child with sole authority to take
possession of the minor child. It was specifically recorded that the
mother had handed over physical custody, that the father would be
discharged from all his liabilities, and that the sole responsibility and
authority to make all decisions would be with the father. He submits
that, despite the said consent terms, the parties again agreed to
visitation rights for the mother and custody for 50% of the school
vacations. The mother withdrew the custody petition.
17. Learned counsel for the father relied upon the e-mails
exchanged between the parties and with the school to point out that
when the custody of the minor child was with the mother, the child
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was disturbed and his grade at school declined. The mother
unauthorisedly transferred the child from Nahar International School
at Powai to Podar International School at Santacruz. The change of
school was made without the father’s consent, though the parties had
submitted a joint letter to the school that the father would have sole
custody of the child.
18. The learned judge of the family court did not give any
opportunity to lead evidence, and the father and his advocate were
absent when the impugned judgment was passed. The entries in the
roznama would show that only the Interim Application in the
Miscellaneous Application filed by the mother was heard and the main
application was never finally heard or argued. The mother withdrew
the custody petition; however, she subsequently applied to modify the
terms, granting the father sole custody and sole authority to make
decisions. Hence, there is a bar under Order II Rule 2 of the Code of
Civil Procedure, 1908 (‘CPC’). The impugned judgment and order is
passed in the application by misusing powers under Section 151, 152
and 153 of the. The application to modify the final consent terms was
not maintainable.
19. To support his submissions learned counsel for the father
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relied upon the decisions in the cases of Aman Lohia Vs. Kiran
Lohia
1
, Dwaraka Das Vs. State of M.P and Another
2
, and Dr. Amit
Kumar Vs. Dr. Sonila and Ors
3
. He further submits that in deciding the
issue of custody, only the welfare of the minor child is the paramount
consideration. To support his submission, he relied upon the decision
of the Apex Court in the case of Thrity Hoshie Dolikuka Vs. Hoshiam
Shavaksha Dolikuka
4
. He submits that orders regarding custody can
be modified only upon proof of a change in circumstances. In the
present case, no such change in circumstances is pleaded or proved
to warrant drastic modification of the consent terms. No evidence was
led before the family court to prove any such change in the
circumstances. To support his submissions that the orders regarding
custody can be modified only by pleading and proof of change in
circumstances, he relied upon the decision of the Apex Court in the
case of Jai Prakash Khadria Vs. Shyam Sunder Agarwalla and Anr
5
,
Gaurav Nagpal Vs. Sumedha Nagpal
6
and Nil Ratan Kundu and
Another Vs. Abhijit Kundu
7
.
20. Learned counsel for the father submitted that the change in
1 AIR 2021 SC 1748
2 (1999) 3 SCC 500
3 (2019) 12 SCC 711
4 (1982) 2 SCC 544
5 (2000) 6 SCCC598
6 (2009) 1 SCC 42
7 (2008) 9 SCC 413
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the original environment of the child has to be considered as an
important factor, as the child has substantially lived with the father
and thus, by a change in the custody, there would be a substantial
change in the original environment of the child. In view of the orders
passed, the custody is taken over by the mother and the child is not
allowed even to meet the grandmother. Thus, the change in the
child’s environment has adversely affected the child’s mindset.
According to the learned counsel for the father, the child lived with his
mother in Calcutta until 22
nd
June 2017. Thereafter, the child resided
with the father in an independent flat in Mumbai. It was only on 23
rd
July 2017 that the child was handed over to the mother. Thereafter,
on 8
th
May 2025, the child was with the mother.
21. By order dated 6
th
May 2025, passed by this court, the
directions in the impugned order to hand over the custody to the
mother were stayed. However, the mother has committed breach of
the orders and refused to hand over custody to the father. Thus, in
view of the mother’s conduct, the child’s environment has been
substantially changed, adversely affecting the child. Hence, the
impugned order for joint custody was passed without taking into
consideration the welfare of the child. Learned counsel for the father
relied upon the Apex Court decision in Mausami Moitra Ganguli V/s
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Jayant Ganguli
8
.
22. Learned counsel for the father relied upon the child
counsellor's report on the interview of the child. According to him, the
child never expressed a preference to live with the mother. The
orders passed at the interim stage by the family court show that the
child was always inclined to be with the father. The interview report
would show that the child was conducting himself maturely and was
never confused when he was with the father. However, after the child
began living with the mother, the child has remained confused, which
has also adversely affected the child's academic performance. The
child’s future is safe with the father, and he would live in a better
environment with the grandmother and his friends in the locality
where the child has always lived with the father. Hence, the impugned
order completely unsettled the child.
23. The directions for joint parenting are therefore not in the
child’s best interests. Even otherwise, the application is finally
decided without affording the parties any opportunity to lead
evidence. Hence, in the absence of any substantial evidence and
change in the circumstances not pleaded and proved, the
modification of the orders passed by consent for the permanent
8 (2008) 7 SCC 673
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custody and sole authority with the father could not have been
modified by misusing power under Section 151 and 152 of the CPC.
The application was thus not maintainable, and the learned judge of
the family court erred in substantially modifying the orders of custody.
He therefore submits that the impugned order must be set aside and
the original consent terms must be restored.
SUBMISSIONS ON BEHALF OF THE MOTHER:
24. The mother appeared in person. She tendered a copy of the
roznama of the main divorce petition and submitted that it was filed in
March 2015. The mother was required to apply for an injunction to
protect the matrimonial home where she was residing with the child.
The mother relied upon various objections raised in the affidavit-in-
reply filed in the interim application in the father’s petition. She relied
on the e-mails she sent to the father, which outlined the issues to be
addressed regarding the child. The medical report would show that
the medical issues of the child were never addressed when the child
was with the father. She had always contributed towards the child’s
expenses and had also transferred the amount of Rs. 5.5 Lakhs to
the father. The said amount and the other expenses incurred by the
mother were returned by the father before filing the divorce petition.
She relied upon the e-mails exchanged between the parties when the
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child was with his paternal grandmother at Calcutta. In view of the
various proceedings, her job was terminated, and thus, she faced
financial constraints.
25. As per the divorce petition, the father’s mother was ailing
and old. Hence, there is no substance in the father's submissions that
the child was in a better environment in the company of the
grandmother. The father had agreed to transfer 50% of the share to
the matrimonial house, as he had breached the injunction order. The
amount paid to the mother at the time of filing consent terms was
towards reimbursement of the school fees and expenses incurred by
the mother. The father has misconstrued the payment as if the mother
had handed over custody in lieu of the amount paid by the father.
26. The final consent terms were hurriedly prepared by the
father. She was never given to understand the repercussions. Both
parties had always agreed to the visitation rights and the mother's
overnight access. She relied on the e-mails exchanged between the
parties, in which the father had given the mother two options
regarding custody. Hence, she never anticipated that she would not
be given custody or overnight access. She agreed to hand over
permanent custody to the father as she found it to be in the interest of
the child that he would be better financially secured with the father, as
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she had lost her job. However, she never anticipated that she would
not be granted temporary custody or visitation rights. The counsellor's
report regarding final consent terms was never explained to her, and
she was not informed that the child was to be handed over to the
father on the date of signing consent terms itself.
27. She submitted that she always tried to cooperate with the
father regarding the child’s welfare. She never wanted to initiate any
litigation. However, the father, by e-mail, forced her to sign the terms
recording the father's sole authority. She signed it, considering it
would be in the child’s best interest. However, she never realised the
repercussion that the same would be used against her to completely
deny the custody or access of the child. She relied upon various e-
mails to submit that the child’s medical issues were never addressed
when the child was with the father, and that she was never informed
about the problems faced by the child. Since her e-mail ID was
retained by the school, she incidentally received an e-mail from the
school intimating about the child’s problem. Hence, she decided to
apply for modification of the consent terms. Since the father had
completely stopped the access, she was constrained to file Regular
Darkhast No. 4 of 2024.
28. So far as the withdrawal of the custody petition is concerned,
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she was misinformed that access or temporary custody during
vacation would never be granted. In view of the consent terms, she
withdrew the custody petition. She submitted that she had never
given up on availing visitation rights and having overnight temporary
custody. The mother submitted that it can never be in the minor
child’s best interests to be completely kept away from the mother.
She had always agreed to solutions in the interest of the child and
never anticipated that her cooperation would be misconstrued, and
she would be denied custody.
29. The mother submitted that her alienation from her son is not
her only grievance. The child's safety, the child's extracurricular
activities, and medical issues are the main concerns. She has always
been involved in the child's activities, and his performance improves
when he is in her custody. The child is academically improving, and
she had suggested solutions by sending emails to the father.
However, despite her repeated suggestions, no progress was seen.
30. According to the mother, the parents' love is always
unconditional. The payments made by the father to reimburse
expenses cannot be construed as meaning that the child would never
be entitled to meet the mother. The reasons for changing the school
are explained by the mother, relying on the child’s interview reports.
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According to the mother, the child can never grow up in fear. The
father had gone to the extent of visiting her residence with the police
without any such permission to bring the police in the middle of the
night when the child was with her. Thus, such conduct of the father
affected the child’s health adversely, and he suffered from bed-
wetting issues. When the child was living with her, he had progressed
not only academically but also in extracurricular activities such as
music and sports. She therefore submitted that there are substantial
reasons for seeking modification.
31. The change in circumstances refers to the problem the child
faces and the need for a safe environment that would help him grow.
Hence, the reasons for filing the application before the family court
seeking modification are solely to consider the child’s welfare. She
had never objected to the child being with the father; however, her
cooperation was misconstrued by the father, and the child was not
only deprived of being with the mother, but it also adversely affected
the upbringing. Hence, the impugned order, insofar as it concerns
joint parenting, would need to be modified.
32. The mother submitted that the father has misconstrued the
reimbursement of expenses to mean that she had given up her right
to access to her child. She submitted such interpretation is
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incomprehensible. She relied upon the decision of the Allahabad High
Court in Pawan Kumar Goyal Vs Neetu
9
. The Allahabad High Court
held that the welfare and best interests of a child cannot be bartered
away by two parties, even in a consent agreement, and if the court
finds that such an agreement does not serve the best interests and
welfare of the child, it must declare the agreement void. The mother
relied upon the Apex Court’s decision in Komal Krishnan Arora Vs
Sandeep Kumar
10
, to support her submissions that on interviewing
the child, the Apex Court found it in the interest of the child to
continue the custody considering the comfort of the child. The mother
also relied upon the decision of this Court in Michael Lobo Vs Smitha
Lobo
11
, to support her submissions that even if she has her own
source of income, the father cannot shirk his responsibility for
maintaining the child and that the amount of expenses to be
reimbursed cannot be determined by an arithmetical formula. She
therefore submitted that she would be entitled to reimbursement of
the expenses she incurred.
ANALYSIS AND CONCLUSIONS:
33. I have carefully perused all the papers. I have heard the
9 2020 DGLS (Alld) 635
10 2025 INSC 1123
11 2025: BHC-AS: 57660
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parties at length. This is an unfortunate case where the parties have
adopted a balanced approach and parted ways, but are unable to
adopt a similarly balanced approach for their minor son. As reflected
in the interview reports of the counsellor of the family court and the
counsellor’s report from the Sukoon Project of the main mediation
centre of this Court, it appears that the minor child has expressed
concerns for the parents and wants to see them happy. This Court
observed distrust expressed by both parties against each other
during the course of the hearing and considered the differing versions
they offered regarding the counselling sessions permitted by this
Court. Hence, in the interest of the child, this Court had directed that
the counsellor’s report from the Sukoon project be kept in a sealed
envelope. It was further clarified in the Order dated 4
th
May 2026 that
the parties were referred for counselling sessions only to enable them
to take a rational decision in the interest of the child, and that the
counsellor’s report shall not be relied upon by the parties. When the
matter was heard by a coordinate bench of this Court, it is recorded in
the order dated 23
rd
June 2025 that, after interacting with the child in
the chamber, he had expressed his desire to go back to the mother’s
house.
34. From the record, it appears that until around 4 years of age,
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the child resided with the mother, and that during the summer
vacation of April 2016, the father took the child to Kolkata at his
mother’s place. The father had applied for divorce in the family court
sometime in March 2015. There are printouts of emails on record
showing that the parties exchanged settlement proposals. Due to an
apprehension that the father might dispose of the matrimonial flat, the
mother applied for protection orders. By an Order dated 2
nd
December 2016, the family court restrained the father from
dispossessing the mother from the flat. Since the child was not
brought back to Mumbai, the mother applied in the divorce petition for
directions to bring the child to Mumbai. The parties filed consent
terms in the divorce petition, and ultimately the child was handed over
to the mother in July 2017. Thereafter, in view of the modified consent
terms, the child was handed over to the father on 21
st
December
2019. Strangely, in the modified final consent terms dated 21
st
December 2019, as set out in Exhibit 85, no provision was included
for the mother to meet the child. The father was granted sole
custody.
35. Unfortunately, the learned Judge of the Family Court did not
express any satisfaction with the consent terms as to whether they
were in the child’s best interests. It is unbelievable that a mother who
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has repeatedly taken efforts to be with the child would sign consent
terms with no provision for access and temporary overnight custody.
The subsequent steps taken by the mother support her case that she
never apprehended that the child would be completely kept away
from her. It appears that the willingness shown by the mother to arrive
at amicable resolutions for the child’s welfare is misconstrued to
mean that she had given up her right as a mother.
36. The submissions made on behalf of the father, that, in
exchange for an amount of Rs. 8 Lakhs and interest in the flat, the
mother had given up the child’s custody, show the father's insensitive
approach. There is no material on record to support such a
contention. Whether the said amount was towards reimbursement of
the expenses incurred by mother is a matter of evidence. The flat in
which the father has executed the gift deed is admittedly the
matrimonial flat; hence, giving a share to the mother in it is not any
extra concern shown by the father. It is a common term when
agreeing to a divorce by mutual consent. Such routine terms in the
consent terms cannot be interpreted to mean that the mother had
given up the custody of the child in exchange for any consideration.
While passing the decree in terms of consent terms, it was the duty of
the Family Court Judge to record satisfaction that no provision for the
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child to meet the mother was in the interest of the child. I see no
reason to believe that the mother at any time intended to give up the
child’s custody.
37. Unfortunately, the child was kept away from the mother after
the final consent terms dated 21
st
December 2019 and thereafter, due
to the COVID-19 pandemic, the mother was unable to meet the son.
The mother applied to seek access to meet the child by filing
Miscellaneous Application No. 70 of 2021. The parties then arrived at
additional consent terms, which were made part of the final decree
passed after the consent terms, as set forth in Exhibit 85. Accordingly,
as per the order dated 11
th
November 2021 passed in the said
miscellaneous civil application, the mother was given access once
every two months for two nights and 50% of the summer and winter
vacation.
38. On 17
th
July 2023, the mother received an email from the
school regarding the child’s problems. Hence, the mother tried to
contact the father. According to the mother's allegations, the child was
not permitted to speak to her; however, on 10
th
August 2023, the child
managed to speak to her. On 3
rd
October 2023, the mother filed a
petition under the Guardians and Wards Act seeking custody of the
child. On 4
th
October 2023, at around 10 PM, the father arrived at the
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mother’s place with the police to pick up the child. However, no
permission was granted to seek police protection. The mother had
refused to send the child along with the Police.
39. On 21
st
November 2023, the mother received an email from
the school stating that the child was experiencing nosebleeds. It
appears that there were disputes between the parties and the child
was not allowed to meet the mother. Hence, on 6
th
January 2024, she
filed Regular Darkhast Application No. 4 of 2024 seeking
implementation of the consent order dated 11
th
November 2021.
Ultimately, the mother filed Miscellaneous Civil Application No. 5 of
2024, seeking modification of the judgments and decrees dated 2
nd
February 2020 and 11
th
November 2021. The mother thus applied for
permanent custody of the child. The impugned judgment and order
was passed on this application for modification.
40. In the said application for modification, the mother had also
filed an application for interim relief, seeking urgent access for the
minor son and for interim custody. The father filed a reply opposing
the said applications. The parties filed a joint pursis dated 20
th
March
2024 in the Regular Darkhast No. 4 of 2024. The said Darkhast
application was filed by the mother for implementation of the consent
Order dated 11
th
November 2021. In the joint pursis, the mother
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agreed that she shall hand over custody of the child to the father in
accordance with the final consent terms in Exhibit 85 and the
judgment and decree dated 1
st
February 2020. The mother also
agreed to abide by the judgment and decree dated 1
st
February 2020
and the order dated 11
th
November 2021, and she agreed to withdraw
the custody petition. In the joint pursis, the father agreed and
undertook to facilitate access of the minor child as per Exhibit 10 of
Civil Miscellaneous Application No. 70 of 2021, that is, as per the
order dated 11
th
November 2021. The joint pursis was accepted vide
order dated 20
th
March 2024, and the parties were directed to
scrupulously follow the agreed terms. Accordingly, the mother
withdrew the custody petition.
41. Regarding the withdrawal of the custody petition, the mother
states that she withdrew it with the intention of ending the litigation
and in the hope that she would not be deprived of access to and
custody of the child. By order dated 6
th
May 2024 passed below
Exhibit 12 in Regular Darkhast No. 4 of 2024, the father was directed
to hand over the custody of the child to the mother for the second part
of the vacation and the mother was permitted to take the child abroad
during the said period. Thus, it appears that till 6
th
May 2024, the
parties mutually agreed to abide by the original consent terms and
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conditions. Hence, it is necessary to ascertain what transpired after
6
th
May 2024, warranting modification of the agreed terms and
conditions.
42. According to the mother, on 16
th
June 2024, the child
expressed gum pain to the mother, and she immediately took steps to
address the issue. The mother has produced documentary evidence
to show that the child had dental issues, for which the mother took
immediate steps. She has also pointed out the emails exchanged
between the parties to show that she had made efforts to resolve
issues pertaining to the child’s best interests; however, the father
replied that the treatment was not that important and that he would
reimburse any costs. The mother has contended that on 17
th
August
2024, the Regular Darkhast Application No. 4 of 2024 filed by her was
disposed of, and the child was interviewed in the application for
modification filed by her. For the said interview, the child had come to
the Court from the father’s house. On 29
th
August 2024, the father
filed his reply to the modification application.
43. According to the mother, on 9
th
September 2024, the parties
were heard in the family court, and the impugned order was passed
thereafter. However, according to the father, the main application was
never finally heard. According to him, a hearing had taken place only
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on the interim application. The father also contended that he and his
advocate were absent when the impugned judgment and order was
passed. Learned Counsel for the father pointed out the entry in the
Roznama on 9
th
September 2024. He submitted that the matter was
shown as adjourned to 30
th
September 2024 for judgement/order.
However, the proceedings were taken on the board on 20
th
September 2024 on an application filed by the mother, and the
judgement was passed. Hence, a serious grievance is made on
behalf of the father that, without conducting a proper hearing on the
application for modification, a drastic order has been passed,
disturbing child custody for no valid reason.
44. According to the father, the mother had filed a compliance
pursis on 8
th
August 2024, in Regular Darkhast No. 4 of 2024 and
accordingly, the execution proceedings were disposed of. According
to the father, the learned judge had directed the father to bring the
child for interview and posted the matter on 17
th
August 2024 at
around 4:30 PM. Accordingly, the child was interviewed, and
thereafter the parties were called by the learned judge in the chamber
and told that the child was brought up very well and is intelligent,
cheerful, cooperative, sensible, and mature. According to the father,
the parties were informed that the child’s feelings for both parents
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were respectful. According to the father, the parties were advised to
explore the possibility of modifications to the access rights by mutual
consent, and the next date was set for 4
th
October 2024. It is a
grievance made on behalf of the father that the date was unilaterally
changed at the behest of the mother to 29
th
August 2024. It is further
contended by the father that the mother’s advocate sent an email to
the father’s advocate stating that the parties would seek clarification
from the court on 19
th
August 2024 at 3 PM regarding the next date.
The father has relied upon the printouts of the email.
45. I have perused the printout of the emails. It appears that
there was some confusion on the next assigned date. However, the
mother had informed the father that she was unaware of the agreed
date because she was busy interacting with the child. She further
stated that she later learnt that the next date was 29
th
August 2024.
However, it appears that the mother’s lawyer had informed the
father’s lawyer that the next date was 4
th
October 2024, while the
case status showed 29
th
August 2024. The lawyer had further
informed that the date would be clarified on the next date and had
requested the father’s advocate to remain present. I do not find it
necessary to get into the controversy regarding the date assigned by
the court, as the entries in the Roznama show that on 17
th
August
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2024, the child was interviewed and the case was adjourned for
orders on 29
th
August 2024. As per the entry in the Roznama on 29
th
August 2024, the next date for hearing was assigned for 31
st
August
2024, and on that date it was adjourned to 9
th
September 2024.
46. The entry of 9
th
September 2024 records the particulars of
various exhibits, and lastly, it is recorded that the court was busy in a
contested judgement; hence, it was adjourned for judgement/order to
30
th
September 2024. However, it appears that in view of the
application filed on behalf of the mother, the matter was taken up on
20
th
September 2024, and final judgement was passed. There is
some substance in the grievance made on behalf of the father that
although the case was adjourned to 30
th
September 2024, for no valid
reason, it was preponed and the judgement was passed in the
absence of the father and his advocate. From the entry in the
Roznama and the impugned judgement, there is no clarity on why the
case was preponed for the passing of the final judgement.
47. It is also alleged by the father that, on 9
th
September 2024,
the case was taken up out of turn and that he and his advocate were
not given a proper hearing to respond to the mother’s allegations. It is
thus contended on behalf of the father that, without any proper
hearing on the application to modify the consent terms, a drastic
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order was passed, thereby disturbing the child’s custody.
48. I have perused the compliance pursis and the order dated 8
th
August 2024. The mother has stated in the compliance pursis that the
father has complied with the access order dated 3
rd
May 2024, and
the Regular Darkhast Application stands satisfied. Accordingly, the
learned judge of the family court has passed an order on 8
th
August
2024, recording the compliance and disposing of the execution
proceedings. The learned judge has recorded that the father’s
grievance that he had not received video calls when the child was
with the mother was a minor issue that had become redundant, and
therefore disposed of the execution proceedings. Thus, it appears
that until 8
th
August 2024, the parties complied with the agreed terms
and conditions, as set out in the final consent terms at Exhibit 85 and
the modified terms dated 11
th
November 2021. Unfortunately, the
record does not provide clarity on what transpired between 8
th
August
2024 and 20
th
September 2024, when the assigned date was
preponed, and the impugned judgment was passed, thereby
drastically modifying the original order in terms of the consent terms
filed by the parties.
49. Both the parties are aggrieved by the impugned judgment.
The father feels aggrieved because the sole custody given to him,
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subject to the mother’s access to meet the child and 50% of the
vacation, has been disturbed, and the physical custody has been
handed over to the mother. The mother feels aggrieved by the
directions issued regarding joint parenting.
50. Hence, it is necessary to determine whether the reasons
recorded in the impugned judgment are well within the scope of the
well-settled legal principles regarding child’s welfare to be the
paramount consideration and permitting modification of the consent
orders regarding custody of the minor child. In Nil Ratan Kundu, the
Apex Court held that apart from the well-settled law relating to
custody of a child, and keeping in mind the relevant statutes and the
rights flowing therefrom, such cases cannot be decided solely by
interpreting legal provisions. It is held that a child custody dispute is a
human problem and must be solved with a human touch. It is held
that, in selecting a guardian, the court exercises
parens
patriae
jurisdiction and is expected to give due weight to a child's
ordinary comfort, contentment, health, education, intellectual
development, and favourable surroundings. It is further held that if the
minor is old enough to form an intelligent preference or judgment, the
court must consider such preference as well, though the final decision
should rest with the court as to what is conducive to the welfare of the
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minor.
51. In Gaurav Nagpal, the Apex Court held that when the court is
confronted with conflicting demands made by the parents, it must
justify each demand. It is held that the court must not only look at the
issue on a legalistic basis but also consider human angles, and must
not place emphasis solely on what the parties say, but must exercise
jurisdiction aimed at the welfare of the minor. In Aman Lohia, the
Apex Court discussed the procedure to be followed in the family
courts. It is held that the nature of inquiry before the Family Court is,
indeed, adjudicatory and it is obliged to resolve the rival claims of the
parties and while doing so, it must adhere to the norms prescribed by
the statute in that regard and also the foundational principle of
fairness of procedure and natural justice. It is held that the Family
Court is expected to follow procedure known to law, which means
insisting on a formal pleading to be filed by both sides, then frame
issues for determination, record evidence of the parties to prove the
facts asserted by the party concerned and only thereafter, to enter
upon determination and render decision thereon by recording reasons
for such decision.
It is further held that for following such procedure
the Family Court is expected to give notice to the respective parties
and provide them sufficient time and opportunity to present their claim
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in the form of pleadings and evidence before determination of the
dispute.
52. In the present case, the application for modification of the
consent orders is decided under Sections 151, 152 and 153 of the
CPC read with Section 7 of the Family Courts Act, 1984. The learned
Counsel for the father, therefore, relied upon the decisions of the
Apex Court in
Dwarka Das and Jayalakshmi Coelho. The Apex Court
held that if the correction sought for goes to the merits of the case, it
is beyond the scope of Section 152 of CPC. It is held that the powers
under Sections 151 and 152 are inherent powers and would be
available to all courts. In the present case, even if the learned Judge
of the family court has referred to Sections 151, 152 and 153 of CPC,
it is a well-settled legal principle that custody orders by their very
nature are never final and are subject to modification upon proof of
change of circumstances requiring change of custody but such
change in custody must be proved to be in the paramount interest of
the child.
53. The learned counsel for the father relied upon the Apex
Court’s decision in Dr Amit Kumar to contend that since the mother
had withdrawn the custody petition, the bar under Order II Rule 2 of
the CPC would apply. However, in the present case, the withdrawal of
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the custody petition was in view of the joint pursis filed in the
execution proceedings filed by the mother for implementation of the
consent order dated 21
st
November 2021 granting access and
overnight custody of the child. Simultaneously, the mother had also
filed the application for modification of the custody order on the
ground of change in circumstances; therefore, the bar under Order II
Rule 2 would not apply. In view of the well-established legal
principles, it is not necessary to discuss in detail the other decisions
relied upon by the parties governing the legal principles that the
child’s welfare must be the paramount consideration and that
modification of the custody orders can be granted subject to proof of
change in circumstances.
54. In the present case, the learned Judge of the Family Court
has placed significant importance on the child's desire to be in the
mother’s company and, more specifically, on joint parenting to ensure
the child's satisfaction, as noted during the child's interview. The
learned judge has observed that the child is attached to both parents
and loves and cares for them. According to the family court judge, the
child desires equal time with both parents and ultimately wants to
keep both of them happy. However, what the learned judge
overlooked is whether the directions for joint parenting would be
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feasible in the facts of the case. While considering the child’s desire,
the original arrangement agreed by the parties by consent can be
modified, subject to proof of changed circumstances requiring a
change of custody and to a determination of whether such a change
would be in the paramount interest of the child. When ruling on the
application for modification of the consent orders, it is important to
consider all the facts and circumstances of the case, the allegations
made by the parties against each other, and the proof supporting
those allegations. Therefore, it is necessary to permit the parties to
lead evidence in support of their allegations and counter-allegations
before deciding any application to modify consent orders.
55. If it is found that the arrangement reached between the
parties by consent is not followed in its true letter and spirit, the initial
attempt should be to ensure adherence to that arrangement. No
doubt the order of custody, even if by consent, can be modified;
however, it is necessary that the court record its satisfaction that
there has been a change in circumstances warranting modification of
the arrangement arrived at by the parties by consent. In the facts of
the present case, it appears that when the parties recorded the final
consent terms, there was no provision for the child to meet the
mother. Hence, upon the mother's application, the parties modified
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the earlier consent terms and provided that the child would meet the
mother and stay with her once every two months and be with her
during 50% of the school vacations. Even after the application for
modification was filed, the parties had agreed in the execution
proceedings that the terms and conditions of the original consent
orders would be scrupulously followed. Therefore, while giving effect
to the child’s desire to be with both the parents and having an
affection towards both, it was necessary for the learned Judge of the
family court to permit the parties to make their submissions and lead
evidence if necessary before issuing directions of joint parenting.
Both the parties feel aggrieved by the directions issued for joint
parenting.
56. In Indian law, the statutory framework governing child
custody and guardianship does not recognise the concept of joint
parenting. There is no compelling equal parenting, and the legal
foundation in Indian law is the welfare of the minor child. The statutes
governing parental disputes emphasise child welfare as a paramount
consideration and not parental rights. Time and again, in various
decisions, the Apex Court has ruled that the welfare of the child is the
paramount consideration in deciding parental disputes. Hence, the
discretionary powers must be exercised by the courts not on the basis
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of parental rights but on the basis of a child’s entitlement to the love,
affection, and care of both parents. Parents’ legal rights can never
override the child’s welfare.
57. Therefore, shared parenting must be structured with visibility
in mind. Hence, without affording the parties an opportunity for a
meaningful hearing, a joint or shared parenting plan cannot be
imposed on them. Such a joint parenting plan may result in further
complications that may affect the welfare of the child and may have
an adverse psychological impact on the child. With Indian families'
mindset in mind, the visibility of a joint or shared parenting plan must
be properly structured. A joint parenting plan would mean a
meaningful role for each parent in decision-making and the child
spending sufficient, high-quality time with both parents. The
educational requirements, medical or health issues, extracurricular
activities, and the child's emotional stability must be kept at the centre
while structuring a joint parenting plan. A strict 50-50 split is not a
practical solution and may lead to further conflicts.
58. A shared or joint parenting plan, if found to be in the best
interests of the child, would be the best solution, but the parents'
willingness is most important. Hence, before structuring a joint or
shared parenting plan, a meaningful and fair discussion and hearing
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are necessary. In the present case, a fair and proper procedure is not
followed before imposing a joint parenting plan. Hence, the impugned
judgment would warrant interference.
59. The mother’s application for modification, therefore, must be
remanded to the family court for a fresh decision, keeping in mind the
observations in this judgment. In the meantime, the existing position
must continue. In the impugned judgment, the learned judge has
observed, based on the child’s interview, that the child's inclination is
to be with the mother, and that he has equal respect and affection for
both parents and wants to see them happy and be with them. This
court, in the order dated 23
rd
June 2024, has also recorded that the
child had shown an inclination to return to the mother’s house.
60.It is the custodial parent’s duty to make genuine efforts to
help the child feel comfortable meeting the other parent. Thus, some
efforts on the part of the mother, with whom the child is presently
residing, must be made to enable the minor son to spend sufficient
time with the father. Apart from the father’s right to meet his son, the
son also has the right to have his father's company.
61. Writ Petition No. 7796 of 2025 is filed by the mother to
challenge the Order dated 29
th
May 2025 passed in Regular Darkhast
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No. 142 of 2025 filed by the father for implementing the Order dated
20
th
September 2024. The father also prayed for directions and
injunctions to implement the Judgments and Decrees dated 1
st
February 2020 and 11
th
November 2021. In view of the Order dated
23
rd
June 2025 passed by this Court and this Order, the order
impugned in Writ Petition No. 7796 of 2025 would not survive and
cannot be implemented.
62. Contempt Petition No. 474 of 2025 is filed by the father
alleging breach of Order dated 6
th
May 2025 passed in Interim
Application No. 14317 of 2025 in Writ Petition No. 14746 of 2024. By
the said order, only the directions issued in the impugned judgment
and order for handing over custody were stayed. This Court further
directed that the arrangement for access agreed between the parties
would continue to operate. The last agreed arrangement for access
between the parties was recorded in the Order dated 11
th
November
2021. By Order dated 23
rd
June 2025, the grievances regarding the
implementation of the access arrangement were considered. This
Court interviewed the child and recorded that the child expressed a
desire to return to the mother’s house. By Order dated 15
th
July 2025
in the Contempt Petition, this Court directed that it should be listed
with the Writ Petition. Both these Orders were challenged by the
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father before the Apex Court. However, the SLP was disposed of by
issuing directions for expeditious disposal of the writ petitions. Hence,
in view of the orders passed by this Court and the circumstances
discussed in the above paragraphs, I do not see any deliberate or
willful breach by the mother of any orders passed by the Family Court
or this Court.
63. Hence, for the reasons recorded above, the following order
is passed in Writ Petition No. 14746 of 2024 and Writ Petition (Stamp)
No. 18398 of 2026:
a) Writ Petition No. 14746 of 2024 and Writ Petition
(Stamp) No. 18398 of 2026 are partly allowed.
b) The judgment and Order dated 20
th
September 2024
passed by the learned Judge of the Family Court No.
3, Mumbai is quashed and set aside. Petition No. Civil
MA-5 of 2024 is restored to file.
c) The concerned Judge of the Family Court shall decide
Petition No. Civil MA-5 of 2024 afresh in accordance
with law after giving hearing to the parties and
permission to lead evidence, if any, desired by the
parties.
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d) The learned Judge shall decide Petition No. Civil MA-5
of 2024 afresh, keeping in mind the observations in this
judgment. Rival contentions of the parties on merits of
Petition No. Civil MA-5 of 2024 are kept open.
e) Till final decision of the Petition No. Civil MA-5 of 2024,
the physical custody of the child will continue with the
mother. The father shall be granted temporary custody
for the first half of the Diwali, Christmas and Summer
holidays. The father shall be granted overnight,
alternate-weekend access from Friday evening 7 pm
until Sunday evening 7 pm. The mother shall drop the
child at the father’s place for the said alternate
weekend access, and the father shall drop the child
back at the mother’s place after availing the said
access.
f) The parties are at liberty to apply in the Family Court
for any modification of the aforesaid interim
arrangement for access, subject to any valid and
reasonable cause pleaded and proved. If such an
application is filed, the Family Court shall decide the
same in accordance with law.
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g) Both parties shall bear the child’s expenses equally,
including education and medical expenses, if any.
From the date of the physical custody of the child with
the mother until the decision in Civil MA-5 of 2024, the
mother is entitled to reimbursement from the father half
the expenses, upon production of proof of the
expenses, with the father to be intimated by email to
the father.
h) If the expenses are not reimbursed by the father, within
two weeks of the intimation, the mother is at liberty to
file an appropriate application for reimbursement
before the Family Court in the Civil MA-5 of 2024. The
Family Court shall decide such an application in
accordance with law expeditiously.
i) Considering the age of the child, the parties shall
cooperate for early disposal of the Civil MA-5 of 2024,
without seeking unnecessary adjournments. The
Family Court shall endeavour to decide the Civil MA-5
of 2024 as expeditiously as possible.
64. For the reasons recorded above, Writ No. 7796 of 2025 is
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1-WP-14746-2024-IA-236-2025.doc
allowed by passing the following order:
a) The Order dated 29
th
May 2025 passed below Exhibit 5
in Regular Darkhast No. 142 of 2025 is quashed and
set aside. The application at Exhibit 5 in Regular
Darkhast No. 142 of 2025 is dismissed.
65. For the reasons recorded above, Contempt Petition No. 474
of 2025 is dismissed.
66. The pending interim applications stand disposed of in the
aforesaid terms.
(GAURI GODSE, J.)
46/46
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