Whether court should decide issue of custody/visitation rights of minor children on basis of consent of parties?
Thus, it follows that the issue of custody of minor children cannot be decided by the Courts dealing with Petitions under the said Act or Petitions dealing with custody/visitation rights of children only on the basis of consensus or consent of the parties. Even under Rule 3 of Order XXIII of the Civil Procedure Code, 1908, a compromise can be recorded provided it is otherwise legal and is not against the public policy. In a case where contesting parties to a Petition under the said Act or under any other Enactment place compromise on record dealing with custody and visitation rights in relation to minors, the Court cannot the accept compromise mechanically. Before accepting the compromise and permitting parties to act upon the compromise, the Court has to apply its mind to the well settled law. What is paramount is what is conducive to the welfare of the children. Therefore, it is the duty of the Court to consider whether the compromise is for the welfare of the children. As stated earlier, the consent of the parties and even the personal law dealing with the issue of custody of children cannot and must not supersede paramount considerations laid down under Section 17 of the said Act. The Court has to be very cautious especially when parties by consent agree to disturb the custody of the children.
IN THE HIGH COURT OF BOMBAY
Family Court Appeal No. 76 of 2016
Decided On: 08.12.2016
Appellants: "A"
Vs.
Respondent: "B"
Hon'ble Judges/Coram:
Abhay Shreeniwas Oka and Anuja Prabhudessai, JJ.
Citation: 2017(6) MHLJ 134
