Abhinav Kohli, husband of TV Actor Shweta Tiwari, had filed a habeas corpus plea while stating that Shweta had allegedly illegally kept their son away from him. He had sought instructions that his son be produced before the court.
Bombay High Court in its order dated September 30, 2021 said that paramount consideration has to be given to the welfare of the minor and not the legal rights of the parents, statutory or customary. While granting visitation rights to the father, the division bench of Justices SS Shinde and N J Jamadar said,
Undoubtedly, the child needs love, affection, care and protection of both, the petitioner (husband) and respondent No.2 (wife). Love and affection of both the parents is considered to be the basic human right of a child.
Thus, the element of the access of the child to a non-custodial parent assumes critical salience. The Courts often ensure that even if custody is given to one parent, non-custodial parent has adequate visitation rights.
Marriage between the couple was solemnised in July 2013. Tiwari has a daughter from her first husband and all three (Shweta, Abhinav, Shweta’s daughter) started residing together as family after mother’s second marriage. A son was born to Shweta and Abhinav in November 2016. However, the duo has been at loggerheads since nearly two-years, where allegations and counter allegations have been thrown at each other, including a police complaint against Abhinav.
Incidentally, Tiwari and Kohli, though now estranged, reside in the same residential complex in two separate buildings. It was alleged by Abhinav, that after separation, Shweta had blocked his communication and access with their 4-year-old son.
Allegations by Husband
Husband alleged that the wife designedly separated the son from him, by forcing him out of her house for three months over a matrimonial dispute. Wife allegedly made an effort to take the son out of the country clandestinely by forging travel documents.
Further, according to the petitioner, Shweta is extremely busy with her professional commitments, and thus has not been able to devote any time for the parenting and development of the child. The petitioner also informed court that since 2019, he had stopped accepting any professional commitments to devote his entire time, effort and attention to bring his child.
However, with the escalation of marital discord, Shweta allegedly prevented Abhinav from meeting the son, jeopardising the willingness and happiness of the child. When the petitioner made efforts to meet with his son, Shweta retaliated by lodging false and motivated reports against the petitioner with the police.
The petitioner further alleged that since October 2020, Shweta was absconding with the child. Abhinav made frantic efforts to locate his wife and the son, as the two were missing from respondent’s home since November 2020. The petitioner made several attempts to contact his wife, and also made several complaints to police and other authorities. However, Abhinav claims that his attempts did not yield any result. Hence, the petitioner was constrained to invoke the writ jurisdiction of this Court.
Defense by Wife
In her defense, Tiwari said that Abhinav has allegedly made several blatantly false, obnoxious and defamatory statements against her. Referring to her credentials as a professional actress, Shweta asserted that she continues to perform her professional duties in order to support herself and her children and parents. She also denied the allegations of making deliberate attempts to separate the child from the father.
Wife further informed court that counter allegations had been made against the petitioner, ranging from misbehaviour with the daughter (from first husband) to substance abuse. Reference was made to various reports lodged against the petitioner, which indicated that her second husband was a threat to her and her family members, particularly their son.
Bombay High Court
After hearing both sides and their submissions, Bombay High Court noted,
To start with, from the material on record it appears that, on account marital discord, the petitioner and respondent have developed strong animosity towards each other. Indisputably, the petitioner and respondent are residing in the same residential complex, albeit in different buildings.
This proximity, it seems, has on the one hand, provided opportunities to the parties to keep a tab on the activities of the other, and, on the other hand, it had led to many acrimonious episodes leading to police reports.
Taking a macro view on the custody matter, the court remarked,
The parameters for determination of the proper custody for a minor, when the parents are at loggerheads, are well recognized. The legal rights of the parents yield to the paramountcy of the welfare of the child. “Welfare”, in turn, is a term of wide connotation. It is not restricted to physical comfort and well being. It comprises emotional, intellectual and overall holistic development of the child.
The court then elaborated on the “tender years rule” and said,
As regards the “tender years rule”, it is necessary to note that it finds statutory recognition under section 6 of the Hindu Minority and Guardianship Act, 1956, which provides that in the case of a boy or an unmarried girl, the father, and after him, the mother shall be the natural guardian; provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother.
Remarking on the petitioner’s allegations that respondent mother does not have much time for the child due to her professional commitments, the high court noted,
At this juncture, the allegations of neglect and lack of care, attributed to respondent are in the realm of the disputed questions of facts. There is an equal body of counter-allegations, at the instance of respondent against the petitioner. It is trite that in the wake of marital discord, the allegations and counter allegations fly thick and fast.
In our view, the allegations against respondent which reflect upon the justifiability of the continued custody of the child with respondent, are essentially rooted in facts, and thus, warrant adjudication.
The court said that thus, it was not persuaded to accede to the submission on behalf of the petitioner on the said count.
The order thus allows visitation rights to the father, while mother gets to keep custody of the son:
(i) The petitioner is entitled to have access to the son, through video conferencing for minimum 30 minutes from 6:00 p.m. to 6:30 p.m. on weekdays, subject to convenience and comfort of the child
(ii) The petitioner shall have physical access to the son every week, on Saturday and Sunday, for two hours, ordinarily in the precincts of the residential complex
(iii) The petitioner and respondent are at liberty to work out the modalities of physical access as regards the day, time and place in such a way that the petitioner has physical access for two hours twice a week
Bombay High Court also added a parting shot for both the husband and wife and stated,
Before parting, we hope and trust that the petitioner and respondent, who claim to be adept at playing characters, in reel life, act in the best interest of the child, in real life.
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