Bombay High Court
RASHMI RAVINDRA JOSHIversusNIRANJAN SATISH OAK
- Decided
- Disposal
- Disposed Off
Holding
The High Court held that there was no substantial change in circumstances and that the child's clear wish to stay with her mother must be respected, thereby setting aside the Family Court's order transferring custody to the father.
Summary
The appellant mother appealed the Family Court's order that directed her to hand over custody of her 14‑year‑old daughter to the biological father within two months. The parties had divorced by consent in 2017, agreeing that the mother would retain custody until the child attained majority, with visitation rights to the father. The father later sought modification of custody, and the Family Court, relying on the father's biological relationship and speculative concerns about the child's adjustment to the mother's remarriage, ordered custody to be transferred to him. The High Court examined the statutory framework under Section 38 of the Special Marriage Act, emphasizing the child's welfare and expressed wishes, and found no substantial change in circumstances justifying a custody change. After interviewing the child, who clearly wished to remain with her mother, the Court set aside the Family Court's order, allowing the mother to retain custody with regulated access for the father.
Issues considered
- Whether the father's request for modification of custody under Section 38 of the Special Marriage Act is justified in view of the mother's remarriage.
- Whether there has been a substantial change in circumstances warranting alteration of the existing custody arrangement.
- Whether the child's expressed wish to remain with the mother must be given effect in determining custody.
- Whether the Family Court erred in basing its decision primarily on the father's biological relationship without concrete evidence of the child's welfare.
Legislation cited
- Code of Criminal Procedure, 1973 — s. 125
- Special Marriage Act, 1954 — s. 38
Subjects
- custody
- child welfare
- Section 38
- Special Marriage Act
- modification of decree
- remarriage
- best interest of child
- access and visitation
Judgment
FCA 111_2026.odt
Rohit Ghuge
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
ROHIT
FAMILY COURT APPEAL NO. 111 OF 2026
RAMDAS
GHUGE
Digitally signed by
Rashmi Ravindra Joshi
ROHIT RAMDAS
GHUGE
Date: 2026.09.23
Age: 45 years, Occupation: Service,
12:09:57 +0530
Residing at C/o. Ravindra Joshi
D-36, Suvarna Apartments,
S. No. 80/90, Lokmanya Housing,
Colony, Kothrud, Pune – 411 038
And
Presently R/a Flat No. 4, Ground
Floor Bldg. No. 25, Renuka Hsg. Soc.,
Scheme 10, Sector 21, Yamunanagar,
Nigdi PCMC, Pune 411 044 …Appellant
Versus
Niranjan Satish Oak
Age: 47 years, Occupation: Service,
Residing at Sangita Satish Oak,
B-1/501, Yellow Blossom Society,
B.T. Kawde Road, Ghorpadi,
Pune 411 036. …Respondent
WITH
INTERIM APPLICATION NO. 6612 OF 2026
IN
FAMILY COURT APPEAL NO. 111 OF 2026
Rashmi Ravindra Joshi
Age: 45 years, Occupation: Service,
Residing at C/o. Ravindra Joshi
D-36, Suvarna Apartments,
S. No. 80/90, Lokmanya Housing,
Colony, Kothrud, Pune – 411 038
And
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FCA 111_2026.odt
Presently R/a Flat No. 4, Ground
Floor Bldg. No. 25, Renuka Hsg. Soc.,
Scheme 10, Sector 21, Yamunanagar,
Nigdi PCMC, Pune 411 044 …Applicant
Versus
Niranjan Satish Oak
Age: 47 years, Occupation: Service,
Residing at Sangita Satish Oak,
B-1/501, Yellow Blossom Society,
B.T. Kawde Road, Ghorpadi,
Pune 411 036. …Respondent
____
Ms. Seema Sarnaik, Senior Advocate i/b Adv. Sangeeta Salvi a/w Ms.
Pooja Chettier and Ms. Sangita Kalsekar, Advocates for the Appellant.
Ms. Padmini Pathak a/w P. K. Hartalkar i/b Mr. Tejas P. Hartalkar a/w Mr.
Mehul P. Hartalkar, Advocate for Respondent.
___
CORAM: BHARATI DANGRE &
ASHISH S CHAVAN, JJ.
DATE : 11th 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, Pune dated 1.07.2026 (“impugned order”) which
inter alia directs the Appellant to handover custody of her minor
daughter aged 14 years to the biological father-Respondent within a
period of 2 months from the date of order. Although, the Family Court
has passed several other directions, the challenge in the present Appeal is
to the limited extent of the custody of the minor daughter being handed
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over to the Respondent.
2. A brief background along with a short chronology of events which
are germane to decide the controversy that arises before us is as follows:
2.1. The marriage between the Appellant mother and Respondent
father was solemnized on 17.01.2012. On 13.10.2012, their
minor daughter was born. Although, it is the case of the
Appellant that she was constrained to leave the matrimonial
house on 19.09.2012, it is an undisputed position that since her
birth, the daughter was in the custody of the Appellant-mother.
2.2. On 10.06.2013, the Respondent-father filed a Petition for
divorce u/s 27 (1) (d) of Special Marriage Act, invoking Sec 38
thereof to seek custody of his daughter.
2.3. On 15.12.2016, the Appellant and the Respondent, inter se
resolved their disputes and executed consent terms. The consent
terms stipulated that permanent one time alimony of Rs.
3,00,000/- was to be paid by the Respondent father to the
Appellant mother and the visitation rights of the Respondent
father were set out while mutually agreeing that the custody of
their daughter shall be with the Appellant-mother until she
attained majority. By judgment and decree dated 18.01.2017, the
Family Court, Pune granted divorce to the Appellant and the
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Respondent in terms of the aforesaid consent terms and the
marriage stood dissolved between them.
2.4. On 08.02.2019, Respondent father sought modification of the
judgment and decree dated 18.01.2017 and also sought custody
of his minor daughter by way of an Application numbered as PD
No. 8/2019 before the Family Court. On 10.07.2019, the
Appellant mother filed Civil Miscellaneous Application No.
67/2019 seeking to modify the judgment and decree dated
18.01.2017 to the extent of the access clause. Both these
applications were clubbed by the Family Court and heard
together.
2.5. On 06.07.2023, the Appellant mother filed an application u/s
125 of CrPC. claiming maintenance for the minor daughter.
2.6. On 16.03.2026, the Appellant got married for the second time. It
is pertinent to note that after her marriage, the Appellant has
moved to the house of her husband along with the minor
daughter.
3. The Family Court has decided all the pending applications and
passed a composite order on 01.07.2026. The Appellant mother by way
of this Appeal has taken exception to the aforesaid impugned order to
the extent of laying a challenge to Clause Nos. 1 & 4 of the order which
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are reproduced as under:
“1. “D” Petition No. 8/2019 is allowed.
XXX
4. Respondent/quondam wife/Mother Rashmi is hereby
directed to hand over the custody of minor daughter
Mihika to the biological father- Niranjan Oak, within a
period of two month from the date of this Judgment.”
4. Since, the Appellant mother is essentially challenging the handing
over of the custody of her minor daughter to the Respondent father, we
do not deem it appropriate to advert to the other disputes between the
parties.
5. On behalf of the Appellant mother, the impugned order is assailed
on several grounds. It is contended that, the Family Court has erred in
holding that the Respondent father is entitled for permanent custody of
minor Daughter only on the premise that the Appellant has re-married
and that the present husband already has two daughters from his earlier
marriage. It is also contended that, the Family Court has not considered
the fact that the Respondent father had not led any evidence on the
aspect of the second marriage of the Appellant and more particularly his
allegation that the minor child was unsafe in the changed atmosphere in
the new house and in the company of the new family. It is also urged that
there was no material produced before the Family Court to demonstrate
that the minor was under pressure or unhappy with the Appellant and
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her new family. It is also contended that on the contrary, prior to her
getting married for a second time, the Appellant had taken into
confidence her daughter and the daughters of her prospective husband to
ensure that the transition of her daughter into the new family would be
smooth and natural.
The Ld. Senior Advocate for the Appellant also criticized the order
of the Family Court on the ground that the primary consideration of the
Family Court in granting the custody to the father is not the welfare of
the child but the fact that he is the biological father and only for this
reason, the welfare of the minor child would necessarily be taken care of
by him. The Ld. Senior Advocate also pointed out that during her
interview with the Family Court on 04.02.2026, the daughter had
informed the Judge that she wished to stay with her mother and her new
family and that she and her step sisters were sharing the same bedroom
and that she was happy with her new family. It was further contended
that the Family Court was in error in not considering the fact that the
Respondent father is staying with his aged father who is himself 74 years
old. There is no female member in the house to take care of the
adolescent daughter. The Respondent’s sister who is staying in the same
complex is at present suffering from cancer and has admitted her own
daughter to a hostel. It was contended that these aspects would disentitle
the Respondent father from claiming custody of the daughter as he
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would not be able to give her a conducive atmosphere for her overall
growth. Lastly, the reasoning of the Family Court is assailed on behalf of
the Appellant on the ground that speculative, extraneous and frivolous
justifications were given by the Family Court to modify the divorce
decree which was granted by consent.
6. On behalf of the Respondent-father, the impugned order is
defended on the strength of various submissions. It is contended that
that the re-marriage of the Appellant was an emotionally disturbing event
for the daughter, who is an adolescent. It is also contended that she was
not taken into confidence by the Appellant before taking this important
step which would have multiple ramifications on the emotional aspect of
her life. It is also argued that the Appellant mother is not concerned
about the well-being of the daughter and this was sought to be
highlighted through an incident of May 2026 when allegedly the
daughter informed the Respondent father that she was having pain in her
leg from 4-5 days and her mother did not take her to a doctor. It is also
sought to be contended that the daughter is having difficulty in coping
with the new family and due to this mental and psychological
disturbance, she is suffering academically. Lastly, it is contended that the
handing over of custody to the Respondent father is justified since it is in
the best interest of the daughter and during the course of an interaction
with the Judge of the Family Court, the daughter expressed a wish to stay
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with the father.
7. Before proceeding to deal with the reasoning of the Family Court
in the impugned order, it would not be out of place to set out the broad
contours of the jurisdictional authority conferred upon the Family Court
vide Section 38 of Special Marriage Act, 1954 to make, revoke, suspend
or vary the decree and orders pertaining to custody, maintenance and
education of minor children. Section 38 is reproduced as under:
“38. Custody of children- In any proceeding under
Chapter V or Chapter VI the District Court may, from
time to time, pass such interim orders and make such
provisions in the decree as it may seem to it to be just and
proper with respect to the custody, maintenance and
education of minor children, consistently with their
wishes wherever possible, and may, after the decree, upon
application by petition for the purpose, make, revoke,
suspend or vary, from time to time, all such orders and
provisions with respect to the custody, maintenance and
education of such children as might have been made by
such decree or interim orders in case the proceeding for
obtaining such decree were still pending.”
From a plain reading of Section 38, one thing that stands out with
clarity is that the overarching consideration in invoking Section 38 is to
ensure the welfare of the minor child in consonance with their wishes
wherever possible. In the present case, since the daughter whose custody
forms the bone of contention between the parties is an adolescent young
girl aged 14, the underlying principle of the welfare of the minor child
being in consonance with the wishes of the child wherever possible
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assumes significance.
8. Although the impugned order covers other disputes set out
hereinabove between the parties, since the Appeal has taken exception
only to the handing over of the custody of the daughter to the
Respondent father, we also deem it appropriate to restrict our findings to
examine whether the aforesaid change of custody was based on sound,
cogent and logical reasoning and whether it was in the best interest of the
minor child and in consonance with her wishes.
9. The Family Court has on one hand observed that the fact that the
Appellant mother has married again by itself would not be a factor to
determine the custody of the minor child. The impugned order observes
that, the conduct of the parties, the reasons which compelled them to
dissolve the marital tie, allegations of ill treatment against each other are
not important to decide the application for modification of the
conditions of custody of the minor child. It also observes that change in
school of the child by itself is not a factor to determine the custody,
neither is the financial capacity of either of the parties. The tenor of the
Judge in the impugned order seems to be that the most important factor
in determining the balance of convenience between the contesting parties
is the welfare of the minor child. However, we fail to see any rationale
behind the ultimate finding of the Family Court to handover the custody
of the minor daughter to the Respondent father. The only justification
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that the Family Court gives in arriving at this conclusion seems to be
based on speculative inferences, stereotypical categorization of human
relationships, and conjectures. The Family Court concludes that the
daughter definitely will experience feelings of insecurity, jealousy or
divided loyalties, without assigning any reasons for coming to such a
finding. The Judge further observes that parents transition to a new
relationship is not easy to accept for children, without any factual finding
to support the same. Some of the observations and conclusions of the
Family Court given illustratively are as under:
“47...Judge is also a human being and part of the
Society. We need to see the present situation by putting our
leg into the shoes of the party. We need to hear unspoken
words. Am of the view, if the court deeply consider the
entire factual matrix, it would definitely hear the inner
voice….Today the personality of Resp. (Appellant) is
divided in two parts; one as a mother and another of wife
as a wife of Mr. (husband of Appellant mother)
….However, now the core and important issue arose.
Now, she has to merge and blend herself in different
character. Now, she has to dilute and submerge in another
relation. All are stranger to her. We need to consider the
emotional clutches faced by her in associating with three
strangers…”
“48...Would stranger act as a biological father? I
may be wrong but, I am of the view that Mr. (husband of
Appellant mother)’s love towards his own two daughters
definitely would not be the same to (the minor child). In
the same line there, is distinction between love of
petitioner being biological father towards the (minor child)
and love of (husband of Appellant mother) towards the
minor child. I reiterate that blood is thicker than water.”
XXX
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“50...Am not doubting the character of three
stranger + divided mother as a well wisher of child but all
that glitters is not a gold. Am of the firm view that in such
changed situation, bright future of the minor child set only
in the lap of her biological father.”
XXX
“55. I conclude by way that, in the lap of biological
father, I see bright future of young girl. Rather in the
company of three stranger/s, she would sleep peacefully in
the company of her Dad. Am not suspecting the mother’s
love but owing to change circumstances, extended
members of the Family, who are totally stranger to the
minor child, for the remaining four years period, if she
resides with her biological father I see her future safe.”
10. It is evident from the aforesaid observations that the Family Court
was persuaded to hold that the custody ought to be handed over to the
Respondent father predominantly on the basis of the fact the minor child
would be more comfortable in the company of her biological father and
her newly formed family could not give her the same warmth and love.
The Family Court seems to have lost sight of the fact that the ingredients
of Section 38 of the Special Marriage Act, 1954 rest on the foundational
fact of the interest and welfare of the minor child in consonance with
their wishes where ever possible. Although the Family Court refers to
interacting with the daughter, it does not set out its impressions and
observations on interacting with the child. It also seems to have
disregarded the settled position of law that post-divorce modifications
are to be seen in the perspective of “substantial change in circumstances”.
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This is the guiding principle in determining whether alteration of terms
ought to be granted or not. In the facts of the present case, the impugned
order does not reflect any substantial change in circumstances to
necessitate a change in custody of the minor child, especially in the
background of the fact that the daughter was staying with the Appellant
mother and the Respondent father was granted adequate access and
visitation to her as per the consent terms.
11. In order to ascertain the wish of the daughter, we had interacted
with her in chambers on 02.09.2026. We noted that she is a mature girl,
who was fairly articulate in expressing herself. She expressed her wish to
continue staying with the Appellant mother and her new family, whilst
continuing to meet her father (Respondent) from time to time. She with
clarity expressed before us that she had no difficulty in adjusting or
coping with her father, sisters or any other members of the new family
and rather she is happy in the new family.
12. In the wake of the aforesaid discussion, we have no hesitation in
coming to a conclusion that the impugned order deserves to be set aside.
13. Hence the following order:
i. Family Court Appeal No. 111 of 2026 is allowed.
Impugned order passed by the Family Court, Pune
dated 01.07.2026 to the extent of Clauses 1 and 4 is
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set aside.
ii. Since the custody of the minor daughter Mihika is
already with the Appellant mother, she is permitted
to retain the same. In addition thereto, overnight
access/access during school/college vacation may be
given to the Respondent father keeping in mind the
convenience of the minor daughter .
iii. The Appellant to continue to grant access of the
minor daughter Mihika to Respondent father in
terms of the consent terms dated 15/12/2016 .
The accompanying Application for stay does not survive, hence,
disposed off.
ASHISH S. CHAVAN, J. BHARATI DANGRE, J.
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