Gujarat High Court: While hearing this writ petition seeking setting aside of orders (impugned orders) whereby, on a pursis not seeking any substantive relief, the Family Court granted visitation rights and directed the petitioner—mother to remain present with two and half-year-old child every Thursday for specified hours, along with other ancillary directions, the Single Judge Bench of J.C. Doshi, J., took note of the impractical and rigid conditions and held that such orders amounted to an overreach of jurisdiction and reflected a failure to adopt a child-centric approach. Emphasising that custody matters require a “sensitive, humane and child-centric approach”, the Court held the directions to be unjustified and contrary to the welfare of the minor child, and accordingly quashed and set aside the impugned orders.
Background
The present petition arose from orders passed by the Family Court concerning access to a minor child aged approximately two and a half years. The petitioner is the mother of the child, while the respondent is the child’s paternal grandfather.
The petitioner—mother challenged the impugned order which had been filed before the trial court in the nature of a pursis containing certain declarations without any substantive relief sought. Despite the limited scope of the application, the Family Court directed the petitioner—mother to remain present in court every working Thursday between 11.00 a.m. and 5.00 p.m. along with the minor child, and had granted visitation access to the respondent. The Family Court had further restrained the petitioner’s second husband from remaining present during such interactions, even though he was not a party to the proceedings.
Subsequently, the Family Court had passed a common order, reiterating the requirement for the petitioner—mother to remain present with the minor before the cluster Family Court at Dhrol—Jodia on every working Thursday (except holidays). The Family Court had also directed that the minor’s birthday be celebrated within the Court premises.
The petitioner—mother contended that the Family Court had acted beyond its jurisdiction by issuing directions against a non-party and by imposing onerous and impractical conditions. It was further argued that the approach adopted by the Family Court was contrary to the welfare of the child, as the minor was of a tender age and remained constantly dependent on the mother, yet was being subjected to prolonged separation during court-mandated visitation hours.
On the other hand, the respondent—grandfather averred that following the death of his son, the petitioner—mother had remarried within a year and relocated to her second matrimonial home with the minor without his consent. He claimed that he had been completely denied access to the child, necessitating judicial intervention. It was contended that the Family Court’s orders were just, legal, and in furtherance of ensuring access, and therefore did not warrant interference.
Analysis and Decision
The Court opined that the approach of the Family Court to be legally unsustainable and contrary to settled principles governing child custody. It noted that the impugned order was merely a pursis containing a unilateral declaration without any prayer for relief. The Court opined that in such a situation, the Family Court could have, at best, recorded the same. Instead, it proceeded to grant visitation rights and temporary custody, which was impermissible, since on such a pursis, the Family Court could pass an order of “recorded” and not beyond that.
The Court also considered the age and condition of the minor child and noted that the child, aged about two and a half years, was visibly distressed and constantly crying in the court and was unwilling to be separated from the petitioner-mother, indicating that he “was not ready to leave an inch from the lap” of the petitioner-mother. In this backdrop the Family Court’s observations attributing obstruction to the mother were held to be unwarranted and insensitive.
Furthermore, the Court reiterated the settled principles of law and emphasised that custody matters require a “sensitive, humane and child–centric approach”, with the Court acting as parens patriae. It clarified that such an approach entails:
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prioritising the best interests and welfare of the child above parental rights;
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conducting proceedings in a non-adversarial and child-friendly manner;
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considering the emotional, psychological, and developmental needs of the child; and
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avoiding a mechanical or technical application of the law.
Applying these principles, the Court held that compelling the mother to bring a child of such tender age to court every week for long hours, particularly at an interim stage, was unjust and contrary to the welfare of the child. The Court also disapproved of other directions passed during the proceedings, including requiring the minor’s presence at the father’s death anniversary and calling for a medical report without any request, noting that such orders were “not befitting to the principle of best interest and welfare of a child”.
Accordingly, the Court held that the impugned orders suffered from improper exercise of jurisdiction and failure to adopt a child-centric approach. The orders were therefore quashed and set aside.
[Mansiben v. Keshavjibhai Damjibhai Ghetiya, C (SCA) No. 15369 of 20252, decided on 23-3-2026]
Advocates who appeared in this case:
For the Petitioner: Premal S. Rachh, Advocate.
For the Respondent: Henil M. Shah, Advocate.