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Custody Battle: Bombay High Court Upholds Child Welfare in Matrimonial Dispute, Affirms Legal Rights of Parents

By - King Stubb & Kasiva on May 4, 2023

“It is important to note that children cannot be treated as chattel or property where the parents would have absolute rights over the destiny and life. Said Bombay High Court Division Bench in the case of Ashu Dutt vs. Aneesha Dutt[1], the Bombay High Court Division Bench emphasized that children cannot be treated as mere possessions and parents do not have absolute rights over their destiny. The welfare of the child should be the top priority and not the legal rights of parents.

The father in the case was seeking visitation rights for his estranged son and the court directed him to not take any action against the mother and son to ensure their safety. The court also highlighted the importance of understanding the child's feelings and ensuring the best method to meet the father. However, the court also acknowledged that it's not possible to turn back time and give the child the family he deserves, but both parents should express regret and take corrective measures to help their son overcome the scars in his mind.

Analysis of The Court’s Order

The Bombay High Court Division Bench in the case of Ashu Dutt vs. Aneesha Dutt directed the father to file an affidavit-cum-undertaking stating that he shall not initiate any action for the arrest or detention of his estranged wife and son. The court observed that matrimonial disputes in India are among the most bitterly fought adversarial litigations, where parents often treat their children as chattel or property. The court emphasized that children cannot be treated as property and that a proper balance between the requirements of the parents and the welfare of the child must be struck.

The father, represented by Advocate Cama, informed the court that the elder children, a son, and a daughter, are in his custody and have gone to the USA for education, while the youngest son is in the custody of the mother.

The court acknowledged that after a certain point, warring couples often stop seeing reason and that it is important to prioritize the welfare of the child over the legal rights of parents. The court directed the central and state authorities to ensure that the woman and the minor son are not obstructed in any manner during their visit to India and that they can return to Thailand thereafter. The court also noted that the boy appeared to be clear and clever in his thoughts and required to be treated as an individual, with respect for his views.

The woman and the boy expressed fear of the father taking any action for their arrest or detention, leading the court to issue clear directions for the father to submit an affidavit stating that he will not initiate any such action. The court emphasized the importance of respecting a child's thoughts and feelings.

In a 2017 case of T.S. Ramesh vs V. Krithika[2]; the Madras High Court described the state of the child of a divorced couple as one of "agony, pain, sorrow, suffering, anguish, torment, sadness, grief, trauma, misery, distress, depression, humiliation, chagrin," etc.

This case was related to the guardianship of the child. The father had initially worked as an assistant general manager in IDBI in Chennai. In 2008, he went to Kuwait for employment and made arrangements for his family, including the admission of his child to an Indian school. However, the respondent would not allow the proper company of the child. The mother went to London without informing the father and left the child in India. The father was seeking custody of the child in this case.

The court stated that egoistic parents often go for divorce without understanding the impact it will have on their children, and expressed grief over how children are often tossed like balls between warring parents. The court noted that none of the parents have the right to interfere with a child's birthright of the love of both parents. The court observed how difficult it is to raise a child even with the support of both parents, especially in today's modern world, full of distractions that can lead to a child getting spoiled and trapped in bad company.

The court also noted how the character of a child is molded depending on the impact caused by parental conduct and atmosphere. The court stated that when parents are divided, one cannot expect the child to be a normal person, and there are chances of behavioral changes and the likelihood of developing erratic personality traits. The court asked both parents to compensate the child monetarily.

In both these cases, it is clear that the courts have observed that the welfare of the child must be the most paramount consideration in marital disputes. While the Madras High Court decision focused on how a child needs both parents, that observation was made keeping in mind the welfare of the child. In the present case, while the son was reluctant to meet his father, the court had to give certain directions to strike a balance between the legal rights of the father and the welfare of the son.


In conclusion, after analyzing the facts and arguments presented by both parties in the two cases, it is evident that there is a back-and-forth process of allegations with different narratives from both parents. In both cases, the mothers expressed concerns about the father's behavior and actions. However, both courts have emphasized the importance of the child's welfare above the legal rights of parents. In the case of T.S. Ramesh vs V. Krithika, the Madras High Court upheld the child's rights and directed both parents to compensate the child monetarily.

On the other hand, the Bombay High Court attempted to strike a balance between the rights of the child and parents by ensuring visiting rights for the father and the safe return of the mother and child, as the child was apprehensive about meeting the father.


What is the difference between legal custody and physical custody of a child?

Legal custody refers to the right of a parent to make major decisions about the child's upbringing, such as education, healthcare, and religion. Physical custody, on the other hand, refers to the right of a parent to have the child physically reside with them. In some cases, both legal and physical custody may be shared between the parents, while in others one parent may have sole legal or physical custody.

Can a child's custody be changed after it has been decided by the court?

Yes, in some cases a child's custody can be changed after it has been decided by the court. For example, if there has been a significant change in circumstances since the custody order was issued, such as a parent relocating to a different city or state, the court may consider modifying the custody arrangement. However, the parent seeking the change would need to file a petition with the court and demonstrate that the proposed modification would be in the child's best interests.

Can grandparents or other relatives seek custody of a child in India?

Yes, under certain circumstances grandparents or other relatives may be able to seek custody of a child in India. For example, if both parents are deceased, the child may be placed in the custody of their closest living relative. However, in general, the preference is to place the child in the custody of one or both parents, unless there are compelling reasons not to do so. Relatives seeking custody of a child would need to file a petition with the court and provide evidence supporting their claim to custody.

[1]Ashu Dutt vs. Aneesha Dutt, INTERIM APPLICATION NO. 1780 OF 2023

[2]T.S. Ramesh vs V. Krithika, O.S.A.No.282 of 2017

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