DATE: 23.03.2026
COURT: High Court of Gujarat
BENCH: Justice JC Doshi
FACTS:
The petitioner is the mother of a minor son
aged two-and-a-half years. After the death of her first husband (son of the
respondent), she contracted a second marriage and shifted with the minor to her
second matrimonial home. The respondent, who is the paternal grandfather of the
minor, filed a petition under Section 12 of the Guardians and Wards Act, 1890
before the Family Court, Dhrol-Jodiya seeking permanent custody of the child.
During the pendency of that petition, the grandfather filed a pursis (Exh.19)
merely declaring certain facts and did not pray for any specific relief. The
Family Court, without any application seeking visitation or access, passed the
impugned order below Exh.19 directing the mother to remain present in court
with the minor on every working Thursday from 11:00 a.m. to 5:00 p.m. to allow
the grandfather access to the child in the court premises. The order further
restrained the mother’s second husband from being present during such meetings
and directed both parties to jointly look after the minor’s food and permitted
the grandfather to give gifts to the child.
Subsequent orders were also passed below
Exhs.28, 29 and 30 reiterating the weekly court attendance and even directing
the mother to celebrate the minor’s birthday in the court premises. Aggrieved
by these directions, the mother approached the Gujarat High Court under Article
227 of the Constitution challenging the order dated 11.09.2025 passed below
Exh.19 as being without jurisdiction, contrary to the welfare of the child, and
passed in excess of the Family Court’s powers. The minor, when produced before
the High Court, was constantly crying and clung to his mother, refusing to
separate from her even for a short period.
ISSUES:
The primary issues were whether the Family
Court could pass a substantive order granting weekly access and temporary
custody to the grandfather on every working Thursday when no such relief was
prayed for in the pursis filed below Exh.19, and whether such an order was in
consonance with the paramount consideration of the welfare of a
two-and-a-half-year-old child who is deeply attached to his mother.
JUDGEMENT WITH REASONING:
The Gujarat High Court allowed the petition
filed by the mother under Article 227 of the Constitution. It quashed and set
aside the impugned order dated 11.09.2025 passed by the learned I/C Judge,
Family Court, Dhrol-Jodiya below Exh.19 in Civil Misc. Application No. (DC) 03
of 2025.
The High Court held that Exh.19 was merely
a unilateral pursis/declaration filed by the grandfather and did not contain
any prayer for visitation, access or interim custody. The Family Court was
therefore not empowered to grant substantive reliefs such as directing the
mother to produce the minor in court every Thursday for six hours or imposing
restrictions on the presence of the mother’s second husband. At the most, the
Court could have recorded the pursis and proceeded no further. The High Court
found the order to be passed in excess of jurisdiction and described the Family
Court’s approach as “unfathomable” and “insensitive”, particularly since the
minor was only two-and-a-half years old and was observed to be constantly
crying and unwilling to leave his mother’s lap even momentarily.
Placing reliance on the consistent view of
the Supreme Court in cases such as Gaurav Nagpal v. Sumedha Nagpal, Nil Ratan
Kundu v. Abhijit Kundu, Yashita Sahu v. State of Rajasthan and Rosy Jacob v.
Jacob A. Chakramakkal, the High Court emphasised that in custody and access
matters the paramount consideration is the welfare of the child and not the
rights of the parties. The Family Court is expected to act as parens patriae
and adopt a sensitive, humane and child-centric approach rather than a
mechanical or adversarial one. Forcing a toddler who is deeply attached to his
mother to attend court every week for several hours, separating him from her
care, and directing birthday celebrations inside the court premises was held to
be contrary to the child’s emotional, psychological and developmental needs.
The High Court observed that such an order caused unnecessary trauma to the
minor and was not in his best interest, especially at an interim stage without
any evidence having been recorded. The petition was therefore allowed and the
impugned order was set aside in the interest of justice.
ANALYSIS:
The Gujarat High Court has strongly underscored the
principle that in child custody and access matters, the welfare of the minor
must remain the paramount consideration, overriding technical or adversarial
approaches adopted by the Family Court. In this case, the Family Court passed a
highly intrusive interim order directing a two-and-a-half-year-old child and
his mother to appear in court every working Thursday for six hours to
facilitate access to the paternal grandfather, even though no such relief was
sought in the pursis filed by the grandfather. The High Court rightly found
this order to be without jurisdiction, as a mere declaration (pursis) could not
form the basis for granting substantive visitation rights and temporary
custody-like arrangements. The Court also noted the insensitive nature of the
order, especially when the minor was observed clinging to his mother and crying
continuously, indicating strong emotional attachment and distress at the
prospect of separation.
This judgment reinforces that Family Courts must act
as parens patriae and adopt a sensitive, humane, and child-centric approach
rather than a mechanical or punitive one. Relying on well-established Supreme
Court precedents such as Gaurav Nagpal, Nil Ratan Kundu, Yashita Sahu, and Rosy
Jacob, the High Court emphasised that custody and access disputes cannot be
treated as mere legal battles between adults; the emotional, psychological, and
developmental needs of the child must guide every decision. Forcing a toddler
to spend long hours in court premises weekly, restricting the presence of the
mother’s second husband, and even directing birthday celebrations inside the
court was held to be traumatic and contrary to the child’s best interest. By
quashing the impugned order under Article 227, the High Court has protected the
minor from unnecessary hardship at an interim stage and sent a clear message
that Family Courts must exercise their discretion with empathy and restraint,
prioritising the child’s welfare over parental or grandparental claims.
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