Busy actress can still look after kid, says Bombay HC, uphold custody
Stating that the welfare of the minor cannot be determined on the sole parameter of the work commitment of one parent and availability of ample time with another, it was expressed by Bench of N.J. Jamadar and S.S. Shinde, JJ., that, “Courts often ensure that even if custody is given to one parent, the non-custodial parent has adequate visitation rights.”
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Shweta Tiwari’s ex-husband Abhinav Kohli had apparently filed a habeas corpus case against the actress alleging that she kept him away from his son. He had demanded Reyaansh’s custody citing Shweta is a busy actress, and hence, she does not have enough time for Reyaansh.
Shweta told, that Abhinav would follow her everywhere she went in the last two years. He would end up in Delhi or Pune or wherever she travelled with Reyansh for her shows and create a ruckus. It was mentally exhausting for both, her and her child. He would not stop at that and would create a scene and end up at her doorstep anytime.
She revealed that she never stopped Reyansh and Abhinav from talking but wrong allegations were made on her. She added that as per the previous court order, he was only supposed to speak to Reyaansh on a video call for only half an hour, but she never stopped them from talking as she understood, but the same person painted her as a bad mother, who doesn’t care and is neglecting her child’s health.
Shweta said, “He alleged that I kidnapped Reyansh and kept him away from him, when I have proof that in all cases, he was aware of Reyansh’s whereabouts all the time. Even during Khatron Ke Khiladi shoot, he tried to create yet another scene despite being fully aware of Reyansh’s stay.”
The court said that Habeas corpus lettering could be carried out to transfer custody of the child to the spouse if the child’s best interests were needed.
As to whom the custody should be given for a minor child, the primary consideration is welfare of the minor and not the legal rights of the guardians or the parents whether statutory rights or customary rights.
Every fact, and point that is for the welfare and development of the child must be considered by the court before giving its judgement.
As fare as the tender years rule is in question, it is recognized u/s 6 of the Hindu Minority and Guardianship Act, 1956. In the present circumstances, this rule is applicable, because of the age of the child and therefore cannot be set aside while evaluating the welfare principle.
As per the court, there were no evidences that warranted a departure from “tender years rule”, nor there was any evidence that indicated that the custody with the mother was detrimental to the welfare and development of the child.
Upholding actor Shweta Tiwari’s custody of her minor son, the Bombay high court on Thursday said just because she is busy doesn’t mean she cannot look after her son.
“In our view, the issue of welfare of the minor cannot be determined on the sole parameter of the work commitment of one parent and the availability of ample time with another. The fact that respondent No 2 is a busy actor, cannot be contested to unfavorably judge her suitability to have the custody of the child.” said a bench of Justices S Shinde and Nijamoodin Jamadar.
On the other hand, as per the report, the court in its judgement said, “There was no material, which prima facie indicates that the custody of the child with the mother was detrimental to his welfare and development. At such a tender age, a child needs the company of the mother and hence keeping him in her custody appears more natural and conducive for the development of the child.”
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Also, considering the child’s age, the tender years rule, which has statutory recognition, is brought into play. They noted that while allegations of neglect and lack of care attributed to Tiwari are in the realm of disputed questions of facts, there is an equal of counter allegations against kohl. They also said the issue of Tiwari’s work commitments putting hindrance in the development of the child is again an argument that needs to be adjudicated.
“in the light of the material on record, we are of the view that there are no exceptional circumstances which would warrant departure from the tender years rule. Nor is there such material which prima facie indicates that custody with respondent is detrimental to the welfare and development of Master R.” said the judges, declining to direct a change in custody. Kohli has been allowed to move the family court.
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For case specific advice please contact matrimonial lawyers advocates in Chandigarh Panchkula Mohali Kharar Derabassi Zirakpur
More on 99888-17966.