Bombay High Court: In an appeal challenging the order of the Family Court directing restoration of interim custody of the minor child to the father and relocation to Singapore under Section 12, Guardians and Wards Act, 1890 (Guardians and Wards Act), the Division Bench of Bharati Dangre and Ashish S. Chavan*, JJ., held that the Family Court had not identified any imminent danger, neglect or circumstance demonstrating that continuation of the child in the mother’s custody was detrimental to him. The Court observed that the Family Court had failed to carry out an independent assessment based on the record of the case to determine the physical, emotional, educational or psychological welfare of the child. The Court further held that the impugned order was based upon irrelevant and extraneous factors, inherent contradictions, preconceived and stereotypical notions of matrimonial relations and assumptions of human behaviour and was therefore untenable in law.
Background
The dispute arose from a Family Court order dated 16 May 2026 allowing an application under Section 12, Guardians and Wards Act and directing restoration of interim custody of the minor son to the father along with relocation to Singapore. The mother challenged the said order before the High Court.
The parties had shifted to Singapore around July 2022, where the minor son was admitted to school. Subsequently, disputes arose between the parties on account of matrimonial discord, allegations of domestic violence and emotional abuse. The mother returned to India along with the minor son on 11 March 2025 and since then the child had continuously remained in her custody at Pune.
The father thereafter filed proceedings before the Family Court and sought interim custody of the minor son and his relocation to Singapore. The Family Court initially set out a schedule of visitation/access. On 13 February 2026, this Court remanded the matter to the Family Court for fresh consideration, noting that there was no deliberation weighing the competing claims of the parents on the touchstone of the welfare of the minor son. In the interregnum, the Family Justice Courts of the Republic of Singapore passed an order granting custody of the minor son to the father.
On behalf of the mother, it was submitted that the impugned order was contrary to settled principles governing custody jurisprudence, wherein welfare, emotional well-being, stability and wishes of the minor child are the paramount considerations. It was urged that the Family Court had directed transfer of custody and relocation at the interim stage without a full-fledged trial, evidence, psychological assessment or independent welfare evaluation. It was further submitted that the findings regarding parental alienation, manipulation, emotional poisoning, trauma and unsafe atmosphere were speculative and unsupported by evidence, and that excessive reliance had been placed upon the Singapore Court order.
On behalf of the father, it was submitted that the Family Court had complied with the observations made by this Court while remanding the matter and had recorded findings on the welfare of the minor son. It was contended that the Family Court had rightly relied upon the Singapore Court order since Singapore and India are reciprocating countries and the principle of comity of courts and welfare of the child are mutually complementary. It was further contended that the interactions of the Family Court with the minor son were instrumental in forming its opinion and that the child’s education, school friends and neighbourhood associations in Singapore had been disrupted.
Analysis
The Court observed that Section 12, Guardians and Wards Act deals with the power of the court to make an interlocutory order for the production of the minor and interim protection of his person and property. The Court noted that 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 protection of the person or property of the minor.
The Court referred to Athar Hussain v. Syed Siraj Ahmed, (2010) 2 SCC 654, where it was observed that in matters of custody, as well settled by judicial precedents, the welfare of the children is the sole and single yardstick by which the court shall assess the comparative merit of the parties contesting for the custody, therefore, while deciding the question of interim custody, the court must be guided by the welfare of the children since Section 12, Guardians and Wards Act empowers the court to make any order as it deems proper. It was further held in Athar Hussain that the court shall determine whether, in proceedings relating to interim custody, there are sufficient and compelling reasons to persuade the court to change the custody of the minor children with immediate effect.
The Court observed that the Family Court has held that the mother has instituted several litigations against the father at every level which shows that she is fighting tooth and nail for material possessions and hence, the Family Court holds that he does not see the good future of the child in the custody of the mother. However, the Court emphasised that this conclusion is not only speculative but also based upon a preconceived notion that only because a parent litigates against the other, he/she is disqualified to be entitled to the custody of the child.
The Court further observed that the Family Court had justified its finding regarding the mother utilising the minor child as a pawn on the basis of allegations which could be considered only after leading evidence, while at the same time recording that the finding was based on its perception of the entire case. The Court held that the Family Court had inherently contradicted itself by justifying its observation on the basis of speculative, extraneous and superfluous considerations.
The Court noted that, while remanding the matter, it had observed that the Family Court had emphasised the troubled relationship between the husband and wife. However, the Family Court had once again emphasised the allegations and counter-allegations between the mother and father, rather selectively focusing upon the perceived faults of the mother. The Court observed that the Family Court had proceeded to sermonise 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 Court observed that the observations 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 were not only unwarranted and unsubstantiated but also regressive, which tend to perpetuate and reinforce stereotypical and erroneous notions about matrimonial relations. The Court observed that Judges, more than others, should be mindful of being circumspect about making such observations, unconnected with the facts involved.
The Court further observed that the observations were concerned with the inter se conduct between the husband and wife and had nothing to do with the welfare of the child and, to that extent, were extraneous to the issue being adjudicated upon by the Family Court. Thus, despite the directions of this Court, the Family Court had once again been carried away by the allegations and counter-allegations between the husband and wife and misdirected itself away from the focus which ought to have been an independent assessment of the welfare of the child and the various underlying factors which contribute to the same.
The Court noted that the Family Court had referred to certain facts or issues in controversy and observed that these facts could be adjudicated only after a full-fledged trial but contradicted itself by giving a finding based on the very same facts without any substantiation. The Court observed that the Family Court had placed reliance on WhatsApp communication, untested and unproved by the rigours of a trial, to jump to the conclusion that the situation was alarming enough to warrant the urgent removal of the child from the mother. The Court held that this observation was not only inherently self-contradictory but also completely devoid of any basis.
The Court further observed that such self-contradicting observations, which were unsubstantiated and without any basis, showed that the Judge of the Family Court had 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 2 parents was more suited to have the interim custody of the child, what was the imminent urgency, if any, in handing over the custody of the child from one parent to another and, most importantly, to carry out an independent assessment based on the record of the case to arrive at a subjective satisfaction as to whether the interim order of custody was in the interest and for the welfare of the child.
The Court observed that the impugned order on one hand stated that the financial capacity of either of the parents cannot be a criterion for the grant of custody but on the other hand referred to the father’s financial capacity, apartment, gated community, parks and schools, domestic helper and separate room for the child. The Court held that this was inherently self-contradictory and reinforced the fact that the Judge of the Family Court had considered the financial superiority of the father as a deciding factor, contrary to the various pronouncements of the Supreme Court.
The Court found that the Family Court had not identified any imminent danger, neglect or circumstance demonstrating that the continuation of the child in the mother’s custody was detrimental to him in the light of the narrow parameters of the jurisdictional authority of the Family Court under Section 12, Guardians and Wards Act. The Court noted that there was a continuity to the child’s life in the custody of his mother and that he was well settled in Pune, sharing strong emotional bonds with his maternal grandparents, extended family members and social circle at Pune. The Court emphasised that while disputed questions of fact may not be adjudicated in an interlocutory application of this nature, it was incumbent upon the jurisdictional court to conduct a summary exercise to determine if and in what manner the continuation of the custody of the child with either parent would be detrimental to his overall welfare.
The Court further observed that the Family Court had heavily relied on the custody order passed by the Singapore Family Justice Court and the principle of comity of courts while exercising parens patriae jurisdiction. The Court emphasised that the overarching consideration of the Indian Courts in dealing with the custody of minor children in their parens patriae jurisdiction is and continues to be the welfare of the child. The Court held that the family court had 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 was an erroneous approach.
The Court held that the Family Court had not appreciated the jurisdictional parameters of Section 12 of the said Act, circumscribed by the interlocutory nature of the provision, and had failed to return a finding as to on what basis and upon consideration of which material it had come to the conclusion that the custody of the minor child had to be changed forthwith in favour of the father. The Court observed that there was no independent assessment carried out by the family court to determine the physical, emotional, educational or psychological welfare of the child, which was contrary to the guiding principles set out by the Supreme Court while considering the interim custody of a minor child in the context of the Guardians and Wards Act.
The Court further observed that the observations of the Family Court were based upon consideration of irrelevant and extraneous factors, some of them suffered from inherent contradictions and some were based on preconceived and stereotypical notions of matrimonial relations and assumptions of human behaviour. The Court noted that the impugned order was bereft of any basis for coming to the conclusion that the welfare of the child lay in the custody of the father. Cumulatively seen, the impugned order was vitiated by the aforesaid aspects, which made the order untenable in law.
Decision
Accordingly, the Court allowed the appeal and set aside the order dated 16 May 2026 passed by the Family Court, Pune. Since the custody of the minor son was already with the mother, she was permitted to retain the custody of the minor child.
The Court directed the mother to grant access of the minor son to the father once in every 3 months and also as per mutual understanding during the period of vacation/holidays of the minor son, keeping in mind the convenience of the minor son. The mother was further directed to grant video-conferencing access to the father as per mutual understanding and, in any case, once every week.
The Court directed that the main proceedings pending before the Family Court, Pune, be decided in an expeditious manner. It was clarified that the observations may not be construed as a discussion on the merits or demerits of the case and that the Family Court shall proceed with the petition/application uninfluenced by these observations.
The accompanying contempt petitions did not survive and were disposed of accordingly.
[Kshitija Anup Gogate v. Anup Anil Gogate, FAMILY COURT APPEAL (ST) NO. 16488 OF 2026, decided on 1-9-2026]
*Judgment authored by: Justice Ashish S. Chavan
Advocates who appeared in this case:
For the Appellant: Akshay Petkar a/w Abhishek Salian i/b Nyaaya Legal
For the Respondent: Abhijeet Sarwate