Bombay High Court
ANUP ANIL GOGATEversusKSHITIJA ANUP GOGATE
- Decided
- Disposal
- Allowed
Holding
The High Court held that the Family Court erred in its exercise of interim custody powers and set aside its order, permitting the mother to retain custody with regulated access to the father.
Summary
The High Court heard an appeal by the mother (appellant) against a Family Court order that had granted interim custody of the minor son to the father (respondent) under Section 12 of the Guardians and Wards Act, 1890. The parties had been married in 2012, the child was born in 2016, and after marital discord the father filed a petition for custody while the mother returned to India with the child in March 2025. The Family Court, relying on a Singapore court order and alleged misconduct by the mother, transferred custody to the father without a full welfare assessment. The High Court found that the Family Court failed to conduct an independent welfare analysis, relied on speculative and extraneous factors, and misapplied Section 12. Consequently, the appellate court set aside the Family Court order, allowing the mother to retain custody, directing regulated visitation and video‑conferencing for the father, and disposing of related contempt petitions. The appeal was allowed.
Issues considered
- The scope of jurisdiction of Section 12 of the Guardians and Wards Act, 1890 in granting interim custody.
- Whether the welfare and best interests of the child were properly considered by the Family Court.
- Whether a foreign court order (Singapore) should be given comity in an Indian custody proceeding.
- Whether financial superiority of a parent can be a decisive factor for interim custody.
- Whether the Family Court’s order should be set aside on grounds of procedural and substantive infirmities.
Legislation cited
- Code of Civil Procedure, 1908 — s. 44A
- Guardians and Wards Act, 1890 — s. 12, 19, 7, 9
Subjects
- custody
- interim custody
- Guardians and Wards Act
- child welfare
- comity of courts
- family law
- access rights
- foreign judgment recognition
Judgment
FCA-16488-2026 (2).odt
Rohit Ghuge
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FAMILY COURT APPEAL (ST) NO. 16488 OF 2026
Digitally
signed by
ROHIT
ROHIT
RAMDAS Mrs. Kshitija Anup Gogate
RAMDAS GHUGE
GHUGE Date:
2026.09.02
Age: Adult, Occ. Household,
15:12:08
+0530
R/o Mandar Bungalow, Lane No.1,
Vinit Co-operative Housing Society,
Near Merchant Co-operative Bank,
Rahul Nagar, Kothrud, Pune – 411038. …Appellant
Versus
Anup Anil Gogate
Age: 39 years, Occ. Service,
R/o 04-36, Blk 103, Bukit Purmei Road,
Singapore – 090103 …Respondent
WITH
CONTEMPT PETITION (ST) NO. 21565 OF 2026
IN
FAMILY COURT APPEAL (ST) NO. 16488 OF 2026
Mr. Anup Anil Gogate,
Age: 40 years, Occ. Service,
R/AT 04-36, BLK 103, Bukit Purmei Road,
Singapore – 090103
Presently At :3, Sai Park, Society, Lane 5,
Dahanukar Colony, Kothrud, Pune – 411 038. …Petitioner
Versus
Mrs. Kshitija Anup Gogate
Age: 39 years, Occ. unemployed,
R/o Mandar Bungalow,
Lane No.1, Vinit Co-operative Housing Society,
Near Merchant Co-operative Bank,
Rahul Nagar, Kothrud, Pune – 411038.
...Contemnor No. 1
Mr. Onkar Sangam,
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FCA-16488-2026 (2).odt
Age: About 37 years, Occ. Service,
R/At Mandar Bungalow,
Lane No.1, Vinit Co-operative Housing Society,
Near Merchant Co-operative Bank, Rahul Nagar, Kothrud,
Pune – 411 038.
...Contemnor No. 2
Mrs. Vijaya Sangam,
Age: About 65 years, Occ. Nil,
R/At Mandar Bungalow,
Lane No.1, Vinit Co-operative Housing Society,
Near Merchant Co-operative Bank, Rahul Nagar, Kothrud,
Pune – 411 038.
...Contemnor No. 3
Mr. Kishor Bodhani,
Age: Adult, Occ. Self Employed,
R/ At : Unknown
...Contemnor No. 4
Mr. Mangesh Paranjpe,
Age: Adult, Occ. Self Employed,
R/ At : Unknown
...Contemnor No. 5
Mr. Dilip Sangam,
Age: About 70 years, Occ. Retired,
R/At Mandar Bungalow,
Lane No.1, Vinit Co-operative Housing Society,
Near Merchant Co-operative Bank, Rahul Nagar, Kothrud,
Pune – 411 038.
...Contemnor No.6
WITH
CONTEMPT PETITION NO. 396 OF 2026
IN
FAMILY COURT APPEAL (ST) NO. 16488 OF 2026
Mr. Anup Anil Gogate,
Age: 40 years, Occ. Service,
R/At 04-36, BLK 103, Bukit Purmei Road,
Singapore – 090103 …Petitioner
Versus
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FCA-16488-2026 (2).odt
Mrs. Kshitija Anup Gogate
Age: 39 years, Occ. Unemployed,
R/at Mandar Bungalow, Lane No.1,
Vinit Co-operating Housing Society,
Near Merchant Co-operative Bank,
Rahul Nagar, Kothrud, Pune – 411038. …Respondent
_______________________________________________________________
Mr. Akshay Petkar a/w Mr. Abhishek Salian i/b Nyaaya Legal, for the
Appellant.
Mr. Abhijeet Sarwate, for the Respondent.
_______________________________________________________________
CORAM: BHARATI DANGRE &
ASHISH S CHAVAN, JJ.
DATE : 01st SEPTEMBER 2026.
JUDGMENT (Per Ashish S. Chavan, J.):
1. By way of this Appeal, the Appellant mother has assailed the order
of the Family Court dated 16.05.2026 whereby, the Court, was pleased
to allow an Application filed by the Respondent-father vide Exhibit-7
filed in Petition D No. 23/2025, under Section 12 of the Guardians and
Wards Act, 1890 (hereinafter referred to as the ‘said Act’), inter alia
directing to restore the custody of minor son to the Respondent-father
along with certain other ancillary reliefs which are discussed hereinafter.
2. Although, the Appeal assails the aforesaid order, it would be
necessary to set out a brief background and a chronology of events in
order to appreciate the controversy that arises for consideration of this
Court.
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FCA-16488-2026 (2).odt
3. BACKGROUND:
3.1. The marriage between the Appellant and Respondent was
solemnized on 18.03.2012 at Pune, in accordance with Hindu
rites and customs.
3.2. On 16.03.2016 a son namely Anuraag was born from the said
wedlock.
3.3. The minor son spent his formative years in Pune until about
June-July 2022. He was admitted to a school in Pune at the
relevant time.
3.4. Around July 2022, both parties shifted to Singapore and the
minor son was thereafter admitted to Wise Oaks International
School, Singapore.
3.5. Disputes arose between the parties on account of matrimonial
discord, allegations of domestic violence, emotional abuse
which strained the matrimonial ties between the parties.
3.6. The Appellant returned to India along with the minor son on
11.03.2025 and since then he has continuously remained in
custody of the Appellant at Pune. The return of the Appellant
along with the minor son, form the bone of contention between
the parties and also the fulcrum of the dispute between them
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which then started its contentious journey.
3.7. On 05.04.2025 the Respondent filed a petition before the
Family Court, Pune under Section 7 of the said Act. Pending the
Petition, the Respondent-father filed an application vide
Exhibit-7 seeking interim custody of the minor son and his
relocation to Singapore. The said application was partly
allowed by the Family Court, which vide its order dated
19.05.2025 set out a schedule of visitation / access concerning
the minor son qua both the parties.
3.8. Aggrieved by this order, Respondent-father instituted an Appeal
bearing FCA No. 56 of 2025 before this Court.
3.9. On 13.02.2026, this Court remanded the matter back to the
Family Court to decide the application for interim custody
afresh within a period of eight weeks, in the light of the fact
that this Court did not find any deliberation by the Family
Court weighing the contesting claims by the competing parents
on the touchstone of consideration of welfare of the minor son.
3.10. It is pertinent to note that, in the interregnum on 25.07.2025,
The Family Justice Courts of the Republic of Singapore passed
an order granting the custody of the minor son to the
Respondent-Father on an application preferred by him.
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FCA-16488-2026 (2).odt
3.11. The Respondent-father had filed a Habeas Corpus petition
before this court making several allegations against the
Appellant-mother and seeking production of the minor son,
which travelled to the Hon’ble Supreme Court and was
ultimately withdrawn on 24.06.2026. Since the same has no
direct bearing on the issue that arises for our consideration, we
do not deem it necessary to refer at length to the developments
in the Habeas Corpus petition.
4. Heard, learned counsel for the Petitioner Mr. Akshay Petkar and
learned counsel for the Respondent Mr. Abhijit Sarwate. Perused the
Appeal, impugned order and the record therewith.
5. CONTENTIONS OF RIVAL PARTIES.
5.1. Contentions of the Appellant:
5.2. On behalf of the Appellant it was submitted that, the impugned
order is contrary to settled principles governing custody
jurisprudence wherein, welfare, emotional well-being, stability,
and wishes of the minor child are the paramount
considerations.
5.3. It was urged on behalf of the Appellant that, the Trial Court
directed transfer of the custody and relocation of the child at
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FCA-16488-2026 (2).odt
the interim stage without a full-fledged trial, evidence,
psychological assessment, or independent welfare evaluation.
5.4. The Appellant has assailed the findings of the Trial Court
regarding parental alienation, manipulation, emotional
poisoning, trauma, and unsafe atmosphere as speculative,
unsupported by evidence while failing to appreciate that the
minor son is presently well settled in Pune, pursuing education
with excellent academic performance under the care and
nurture of the Appellant-mother.
5.5. Learned counsel for the Appellant submitted that the Trial court
has erred in recording adverse findings against the Appellant-
mother without there being any cogent or reliable material to
base such finding on. He has also argued that although the
Family Court has interacted with the minor son, it has not
recorded its impressions of the said interaction and in that
context it was also argued that when this Court while hearing
the Habeas Corpus Petition referred hereinabove interacted
with the minor son, he appeared to be happy and comfortable
in the care of Appellant-mother and did not wish to return to
Singapore.
5.6. On behalf of the Appellant it was urged that, the Trial Court
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FCA-16488-2026 (2).odt
has exceeded its limited scope of interim jurisdiction under
Section 12 of the said Act virtually granting irreversible custody
amounting to final relief even before conclusion of the Trial
placing undue emphasis on the Respondent-father’s financial
status and ignoring the settled principles that economic
superiority alone cannot determine welfare and custody of
minor child.
5.7. That, the Trial Court placed excessive reliance upon the
proceedings and order of the Singapore Court while losing
sight of the fact that, it was dealing with guardianship
jurisdiction and hence, it was incumbent upon the Family Court
to consider the welfare of the minor son as the over-arching
consideration to decide the interim application for custody.
5.8. Contentions of the Respondent.
5.9. On behalf of the Respondent-father, learned counsel Mr.
Sarwate supported the impugned order on several grounds. He
urged that, the Family Court in the impugned order has
complied with the observation made by this Court while
remanding the matter back to it for fresh consideration and
hence, its exercise of determining the custody of the minor son
cannot be faulted with at this stage.
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FCA-16488-2026 (2).odt
5.10. It was contended that, the Family Court has recorded findings
on the welfare of the minor son. The observation against the
Appellant-mother that she is utilizing the minor son as a pawn,
that she has instigated him against the Respondent-father has
been supported by cogent material. It was urged that the
observation of the Family Court that the Respondent-father was
in a better position to take care of the minor son is not only
based on economic superiority but also considers other factors.
5.11. It was contended that the Trial court has rightly placed reliance
on the Singapore Court order since Singapore and India are
reciprocating countries and the principle of comity of courts
and the welfare of child are not mutually exclusive but mutually
complementary. Learned counsel for the Respondent has also
harped on the conduct of the mother who according to him has
created impediments in the continuous access to the
Respondent-father.
5.12. It was further contended that the interactions that the Family
Court had with the minor son were instrumental in forming its
opinion that he did not wish to stay with his mother. It was also
emphasized that since the time that the minor son was staying
in India with his mother, his education at Singapore in
Cambridge Curriculum, his school friends and neighborhood
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FCA-16488-2026 (2).odt
associations were disrupted and this has affected the continuity
in his life.
6. Before proceeding to examine the impugned order, it would not be
out of place to refer to the order of the Division Bench of this Court
dated 13.02.2026, in the first round of litigation between the parties,
remanding the matter back for fresh consideration to the Family Court.
In the said order while dealing with the impugned order of the Family
Court, this Court had observed that in the entire order there was no
deliberation on the contention raised by the father as regards his claim
for temporary custody and protection of the child, pending his
proceedings for being declared as guardian under Section 7 of the said
Act. This Court had observed that the Family Court was expected to
consider the pros and cons of the rival claims put up by the parents, but
instead it is seen that the court is carried away by the allegations about
the distorted relationship between the husband and wife. This Court had
also observed that the impugned order failed to consider the potential of
each of the parents to act in the interest of the child and that the point
for determination in such proceedings would be as to who would be in a
better position to take care of the child and under what circumstances. It
was in this context that this Court had relegated the parties to the Family
Court for a fresh determination of the application with due focus upon
the welfare of the child in considering the interim application for grant of
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FCA-16488-2026 (2).odt
temporary custody.
7. It would therefore be necessary to examine the present impugned
order not only on its merits but also in the light of directions of this
Court as to whether the impugned order reflects a compliance of the
same and consequent finding on the aforesaid aspects.
8. THE IMPUGNED ORDER AND ITS REASONING :
8.1. At the outset, before analyzing the impugned order on merits it
would be necessary to set out the broad contours of the
jurisdictional scope of Section 12 of the said Act, which is
reproduced hereinbelow:
“12. Power to make interlocutory order for production of minor
and interim protection of person and property.
(1) The Court may direct that the person, if any, having the
custody of the minor, shall produce him or cause him to be
produced at such place and time and before such person as
it appoints, and may make such order for the temporary
custody and protection of the person or property of the
minor as it thinks proper.
(2) If the minor is a female who ought not to be compelled to
appear in public, the direction under sub-section (1) for her
production shall require her to be produced in accordance
with the customs and manners of the country
(3) Nothing in this section shall authorise -
(a) the Court to place a female minor in the temporary
custody of a person claiming to be her guardian on the
ground of his being her husband, unless she is already
in his custody with the consent of her parents, if any, or
(b) any person to whom the temporary custody and
protection of the property of a minor is entrusted to
dispossess otherwise than by due course of law any
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FCA-16488-2026 (2).odt
person in possession of any of the property.”
8.2. From a plain reading of the aforesaid provision it is evidently
clear that Section 12 deals with the power of the court to make
an interlocutory order for the production of minor and interim
protection of his person and property. This provision of law is
in the nature of interim arrangement to direct the person
having the custody of the minor to produce him and thereafter,
make such order as the court thinks fit and proper for the
temporary custody and the protection of the person or property
of the minor. The scope and extent of the power to be utilized
by the court under Section 12 has been set out by the Hon’ble
Supreme Court in a series of judgments. In the case of Athar
Hussain vs. Syed Siraj Ahmed and Ors 1, it was observed as
under:
“30. Reasons are as follows: Section 12 of the Act
empowers courts to "make such order for the
temporary custody and protection of the person or
property of the minor as it thinks proper". (emphasis
supplied) In matters of custody, as well settled by
judicial precedents, the welfare of the children is the
sole and single yardstick by which the court shall
assess the comparative merit of the parties contesting
for the custody. Therefore, while deciding the
question of interim custody, we must be guided by the
welfare of the children since Section 12 empowers the
court to make any order as it deems proper.
1(2010) 2 SCC 654
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FCA-16488-2026 (2).odt
31. We are mindful of the fact that, as far as the
matter of guardianship is concerned, the prima facie
case lies in favour of the father as under Section 19 of
the Guardians and Wards Act, unless the father is not
fit to be a guardian, the court has no jurisdiction to
appoint another guardian. It is also true that the
respondents, despite the voluminous allegations
levelled against the appellant have not been able to
prove that he is not fit to take care of the minor
children, nor has the Family Court or the High Court
found him so. However, the question of custody is
different from the question of guardianship. Father
can continue to be the natural guardian of the
children; however, the considerations pertaining to
the welfare of the child may indicate lawful custody
with another friend or relative as serving his/her
interest better.
XXX
36. ...What is important for us to note from these
observations is that the court shall determine whether,
in proceedings relating to interim custody, there are
sufficient and compelling reasons to persuade the
court to change the custody of the minor children
with immediate effect.
37. Stability and consistency in the affairs and
routines of children is also an important consideration
as was held by this Court in another decision cited by
the learned counsel for the appellant in Mausami
Moitra Ganguli v. Jayant Ganguli.”
8.3. IMPUGNED ORDER
8.3.1. The impugned order prefaces itself by setting out the
observations of the Division Bench of this Court while directing
the Family Court to decide the Application under Section 12 of
the said Act. It goes on to record the rival submissions on behalf
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FCA-16488-2026 (2).odt
of the parties. The Judge has endeavored to divide the
reasoning into three broad sections. First, dealing with the
discussion on merits. Second, the conclusions/findings and
third, the operative part of the order.
8.3.2. The discussion on merits highlights the number and nature of
proceedings instituted by the parties against each other. Alleged
failure of the mother to facilitate access, her refusal to reconcile
with the Respondent-father, her persistent conduct of allegedly
disobeying the orders of various courts, her alleged non-
performance of matrimonial duties, electronic evidence in the
nature of WhatsApp messages which have allegedly poisoned
the mind of the minor child, the Respondent-father’s financial
position and facilities available in Singapore along with the
custody order of the Singapore Court and the principle of
comity of courts are aspects which are dealt by the family court.
8.3.3. The Family Court has in the impugned order time and again
reproduced the principle that in all matters concerning custody,
the welfare and best interests of child constitute the sole and
paramount consideration, which was the focal point of the
exercise expected to be carried out by the Family Court as
directed by this Court while remanding the Application.
Unfortunately, we notice that the Family Court has not made
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FCA-16488-2026 (2).odt
any efforts to substantiate its reasoning in coming to the
conclusion that the welfare of the minor child lies in the
handing over of his interim custody to the Respondent-father,
thus completely bypassing the directions by this Court and
reducing the aforesaid principle to a dead letter in the
impugned order. For instance, the Family Court observes that
the Appellant-mother has instituted several litigations against
the Respondent-father at every level which shows that she is
fighting tooth and nail for material possessions and hence, he
holds that he does not see the good future of the child in the
custody of the Appellant-mother. This conclusion is not only
speculative but also based upon a preconceived notion that only
because a parent litigates against the other, he/she is disqualified
to be entitled to the custody of the child.
8.3.4. The Family Court has further observed that the Appellant-
mother is utilizing the minor child as a pawn in a legal battle
between herself and the Respondent-father. The reasoning that
the Family Court gives to justify this observation is that the
Appellant-mother is facing an allegation that despite Court
orders, she has time and again refused to give access to the
minor child and that she has forgotten that the child belongs to
both parents. Surprisingly, the Family Court further reasons
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FCA-16488-2026 (2).odt
that missed calls from the father, whispers during audio calls,
asking the child to send a text to his father to the effect that the
Respondent is not his father, all point out to the fact the child is
being instigated and/or pressurized by the Appellant-mother. It
is even more surprising that the Family Court on one hand
notes that this alleged disobedience to court orders and refusal
to grant access can be considered only after leading evidence
but at the same time, records that this finding is based on his
“perception” of the entire observation of the case. The Judge of
the Family Court has inherently contradicted himself by
justifying his observation on the basis of speculative, extraneous
and superfluous considerations.
8.3.5. While remanding the matter back, this Court had observed
that the Family Court had emphasised on the troubled
relationship between the husband and wife. However, it seems
that this observation did not have its desired effect as can be
seen in the present impugned order. The Family Court has once
again emphasized on the allegations and counter allegations
between the mother and the father, rather selectively focusing
upon the perceived faults of the Appellant-mother.
Illustratively, there is an observation that the Appellant has
forgotten that the Respondent is the “Janak Pita” of their child
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FCA-16488-2026 (2).odt
and that she has not exhibited a single word that she is ready to
“patch-up” with him but is only expecting huge monetary
assistance. It is rather perturbing that the Judge of the Family
Court has proceeded to sermonize and set out the so called
duties of a pious wife towards her husband as a basis to observe
that it would be in the best interest of the child to be with his
father. The Family Court observes:
“9. ...Pious duties of a wife towards her husband,
nurturing the home, maintaining the respect,
providing emotional support in traditional and
religious perspectives, managing the household
diligently, communicating with kindness, creating
welcoming environment - these appears to be
foreign terms to her. Keeping the marriage vows,
caring for her husband physically and emotionally,
praying for him, and seeking his good in all things
is expectation however she treated him as if he and
his family is her seven generation enemy thus, in
the company of such a women, the future of the
Child is not safe. If he heard the poisonous words
day-to-day for his pappa, his bonding with his dad
would definitely ruined in a very short time. Thus,
to save the such a lovely relationship of Bap (father)
and Mulga (son), according to me, it would be
better for child's future to rest in the nest of his
father. ”
8.3.6. As if the aforesaid moralistic sermon was not enough, the
Family Court uses proverbs to make casual stereotypical and
generalized observations about relation between the minor
child and his grandfather and makes scathing remarks against
the Appellant on the basis of the fact that she is the “Bahu” of
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FCA-16488-2026 (2).odt
the family. The observations of the Judge of the Family Court
setting out the so called pious duties of a wife or expecting her
to act as the “Bahu” of the family are, to our mind not only
unwarranted and unsubstantiated but also regressive which tend
to perpetuate and reinforce stereotypical and erroneous notions
about matrimonial relations. We cant help but observe that
Judges, more than others should be mindful of being
circumspect about making such observations, unconnected with
the facts involved.
8.3.7. Moreover, the aforesaid observations in any event are
concerned with the inter se conduct between the husband and
wife and have nothing to do with the welfare of the child and
to that extent are extraneous to the issue being adjudicated
upon by the Family Court. Thus, despite the directions of this
Court, the Family Court has once again, been carried away by
the allegations and counter allegations between the husband
and wife and misdirected itself away from the focus which
ought to have been an independent assessment of the welfare
of the child and the various underlying factors which contribute
to the same.
8.3.8. Another pattern that we notice in the impugned order is that
the Judge of the Family Court has referred to certain facts or
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issues in controversy, followed by an observation that these
facts can be adjudicated only after a full fledged trial but
contradicts himself by giving a finding based on the very same
facts without any substantiation. To give an example, the
impugned order observes that electronic evidence cannot be
considered without a full fledged trial. However, at the same
time it places reliance on some WhatsApp communication
allegedly between the Appellant and the Respondent, untested
and unproved by the rigors of a trial, to jump to the conclusion
that if the child of such tender age comes across such messages,
he would form an adverse opinion about the Respondent-father
and goes on to observe that ‘hence’ the situation is alarming
enough to warrant the urgent removal of the child from the
mother. This observation is not only inherently self-
contradictory but also completely devoid of any basis.
Moreover, it focuses selectively on the conduct of the
Appellant-mother and apportions the blame entirely to her
without there being any basis for making such an observation.
8.3.9. One more example of such self-contradictory observation is
the finding of the Court that the wish of the child is immaterial
and that the Court needs to take a decision on what is good for
the welfare of the child. This aspect is contradicted immediately
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by another observation that during interaction with the child,
the Judge found him to be influenced by his mother and hence,
he observes that the mother has no right to deprive the father
from meeting his own child. Such self-contradicting
observations which are unsubstantiated and without any basis
show that the Judge of the Family Court has based his findings
on the foundation of his perceptions, notions, stereotypical
beliefs about matrimonial relations and assumptions about
human behaviour and not on the exercise that he was required
to carry out viz. to independently assess as to who between the
two parents was more suited to have the interim custody of the
child, what was the imminent urgency if any in handing over
the custody of the child from one parent to another and most
importantly, to carry out an independent assessment based on
the record of the case to arrive at a subjective satisfaction as to
whether the interim order of custody was in the interest and for
the welfare of the child.
8.3.10. The impugned order on one hand observes that the financial
capacity of either of the parents cannot be a criteria for the
grant of custody but on the other hand, it observes that the
father is financially capable of admitting the son to a
Cambridge Curriculum school, he has a 3-BHK apartment at
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Singapore with gated community, parks and schools nearby, a
full-time domestic helper and a seperate room for the child.
This again, is inherently self-contradictory and reinforces the
fact that the Judge of the Family Court has considered the
financial superiority of the father as a deciding factor which is
contrary to the various pronouncements of the Hon’ble Apex
Court.
8.3.11. As seen from the aforesaid discussion of the impugned order,
the Family Court has not identified any imminent danger,
neglect or circumstance demonstrating that the continuation of
the child in the Appellant’s custody is detrimental to him in the
light of the narrow parameters of the jurisdictional authority of
the Family Court u/s 12 of the said Act. The Family Court has
not considered the aspect that from June 2025, the child was
admitted to a school in Pune. There is a continuity to his life in
the custody of his mother and he is well settled in Pune, sharing
strong emotional bonds with his maternal grandparents,
extended family members and social circle at Pune. While it is
evident that disputed questions of fact may not be adjudicated
in an interlocutory application of this nature but it is incumbent
upon the jurisdictional Court to conduct a summary exercise to
determine if and in what manner the continuation of the
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FCA-16488-2026 (2).odt
custody of the child with either parent would be detrimental to
his overall welfare. Again, we find that this exercise has not
been carried out by the Family Court in the impugned order.
8.3.12. The Judge of the Family Court has in the impugned order
heavily relied on the custody order passed by the Singapore
Family Justice Court, granting the custody of the child to the
father and the principle of comity of courts while exercising
parens patriae jurisdiction as a deciding factor in granting the
custody of the child to the father. It need not be emphasized
that time and again the Hon’ble Supreme Court has after
considering the principle of comity of courts and Section 44A
of CPC, held that the overarching consideration of the Indian
Courts in dealing with the custody of minor children in their
parens patriae jurisdiction is and continues to be the welfare of
the child. We are fortified in this view by the observation of the
Hon’ble Supreme Court in the matter of Ruchi Majoo vs.
Sanjeev Majoo2 where the Apex Court while dealing with the
principle of comity of courts, recognition of decrees and orders
passed by Foreign Courts, and in the perspective of the
paramount consideration of welfare of the child observed thus:
2 (2011) 6 SCC 479
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“60. In cases arising out of proceedings under the
Guardians and Wards Act, the jurisdiction of the court is
determined by whether the minor ordinarily resides
within the area on which the court exercises such
jurisdiction. There is thus a significant difference
between the jurisdictional facts relevant to the exercise
of powers by a writ court on the one hand and a court
under the Guardians and Wards Act on the other.
61. Having said that we must make it clear that no
matter a court is exercising powers under the Guardians
and Wards Act it can choose to hold a summary enquiry
into the matter and pass appropriate orders provided it
is otherwise competent to entertain a petition for
custody of the minor under Section 9(1) of the Act. This
is clear from the decision of this Court in Dhanwanti
Joshi v. Madhav Unde, which arose out of proceedings
under the Guardians and Wards Act. The following
passage is in this regard apposite: (SCC pp. 125-26,
para 30)
"30. We may here state that this Court in Elizabeth
Dinshaw v. Arvand M. Dinshaw while dealing with a
child removed by the father from USA contrary to
the custody orders of the US Court directed that the
child be sent back to USA to the mother not only
because of the principle of comity but also because,
on facts-which were independently considered-it was
in the interests of the child to be sent back to the
native State. There the removal of the child by the
father and the mother's application in India were
within six months. In that context, this Court
referred to H. (Infants), In re which case, as pointed
out by us above has been explained in L (Minors), In
re as a case where the court thought it fit to exercise
its summary jurisdiction in the interests of the child.
Be that as it may, the general principles laid down in
McKee v. McKee and v. C and the distinction
between summary and elaborate inquiries as stated in
L (Minors), In re are today well settled in UK,
Canada, Australia and the USA. The same principles
apply in our country. Therefore nothing precludes
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the Indian courts from considering the question on
merits, having regard to the delay from 1984-even
assuming that the earlier orders passed in India do
not operate as constructive res judicata."
We find that the Family Court has laid emphasis on the
enforceability of the order of the Singapore Court on the principle of
comity of courts without examining the overarching and predominant
aspect of the welfare of the minor child which to our mind is an
erroneous approach.
9. CONCLUSION:
In the light of the aforesaid discussion, it is evident that the Family
Court has not appreciated the jurisdictional parameters of Section 12 of
the said Act, circumscribed by the interlocutory nature of the provision
and failed to return a finding as to on what basis and upon consideration
of which material, it has come to the conclusion that the custody of the
minor child had to be changed forthwith in the favour of the father. We
see no independent assessment carried out by the Family Court to
determine the physical, emotional, educational or psychological welfare
of the child which is contrary to the guiding principles set out by the
Hon’ble Supreme Court while considering the interim custody of minor
child in the context of Guardians and Wards Act, 1890. Moreover,
without delving deep into the merits of the case, we find that the
observations of the Family Court as discussed hereinabove are based
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upon consideration of irrelevant and extraneous factors, some of these
observations suffer from inherent contradictions and some of them are
based on preconceived and stereotypical notions of matrimonial relations
and assumptions of human behaviour.
10. It is an undisputed position that since, March 2025 the minor child
has continuously remained in the custody of the Appellant-mother. As
discussed herein above, the Family Court in its impugned order has not
indicated any reasoning or basis to change the custody of the minor child
to the Respondent-father. We also note that the impugned order is bereft
of any basis for coming to the conclusion that the welfare of the child lies
in the custody of the Respondent-father. Cumulatively seen, the
impugned order is vitiated by the aforesaid aspects which makes the
order untenable in law. Hence, it deserves to be set aside.
11. Consequently, the Appeal is allowed in terms of the following
order:
i. The order dated 16.05.2026, passed by the Family Court, Pune
below Exhibit-7 arising out of Petition D No. 23/2025 is set aside.
ii. Since, the custody of minor son Anuraag Gogate is already with
the appellant mother, she is permitted to retain the custody of the
minor child.
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iii. The Appellant-mother is directed to grant access of minor son
to the Respondent-father once in every 3 months and also as per
mutual understanding during the period of vacation/holidays of the
minor son keeping in mind the convenience of the minor son.
iv. The Appellant-mother is directed to grant video conferencing
access to the Respondent-father as per mutual understanding and in
any case once in every week.
v. The main proceedings pending before the family Court, Pune,
arising out of Petition D No. 23/2025 be decided in an expeditious
manner.
vi. It is clarified that our observations may not be construed as a
discussion on the merit or de-merits of the case and the Family
Court, Pune shall proceed with the Petition/Application before it
uninfluenced by these observations.
The accompanying Contempt Petition (St) No. 21565 of 2026
and Contempt Petition No. 396 of 2026 do not survive and in view
thereof are disposed off accordingly.
ASHISH S. CHAVAN, J. BHARATI DANGRE, J.
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