The Bombay High Court has redefined the scope of parental access orders in child custody disputes, emphasizing that physical visitation alone is insufficient to safeguard the child’s emotional well-being. In a significant development, the Court mandated structured phone and video access alongside flexible scheduling, establishing a new benchmark for enforcing rights under the Guardians and Wards Act and the Juvenile Justice Act.
Background & Facts
The Dispute
The petitioner, Amit Arjun Bhivande, sought enforcement of access rights to his minor son, Mst. Aryansh, following the breakdown of his marriage with the respondent, Priyanka d/o Narayan Jadhav. The lower court had ordered access on every third Saturday, but the petitioner alleged consistent denial of contact, prompting a writ petition and a concurrent contempt proceeding.
Procedural History
- November 2024: Joint Civil Judge, Panvel, ordered access on every third Saturday between 11:00 a.m. and 1:00 p.m.
- February 2025: Single Judge modified order to include access on 2nd and 4th Sundays of each month, with specific dates for June 2025.
- June 2025: Contempt petition filed alleging non-compliance with the modified order.
- January 2026: Matter heard before Madhav J. Jamdar, J., with both parties present in person.
Relief Sought
The petitioner sought enforcement of visitation rights and contempt proceedings against the respondent for non-compliance. The respondent countered by alleging non-payment of child maintenance.
The Legal Issue
The central question was whether a court-ordered parental access arrangement under family law must include non-physical forms of contact, such as phone and video calls, to fulfill the child’s right to meaningful relationship with both parents, and whether rigid scheduling without flexibility violates the doctrine of the child’s best interests.
Arguments Presented
For the Petitioner
The petitioner’s counsel argued that physical access alone, confined to fixed Saturdays or Sundays, was inadequate to sustain the father-child bond. They cited S. Varadarajan v. M. Vaitheeswaran to emphasize that emotional continuity through regular communication is integral to the child’s psychological development. The petitioner also offered to deposit Rs.1,00,000 towards arrears and commit to monthly maintenance, demonstrating willingness to comply with financial obligations.
For the Respondent
The respondent contended that the petitioner had consistently failed to pay maintenance, thereby undermining his claim to access. She argued that granting additional phone access would enable harassment and disrupt the child’s routine. She relied on Shilpa Sailesh v. Varun Sreenivasan to assert that access rights are conditional upon fulfillment of financial duties.
The Court's Analysis
The Court rejected the notion that access rights are contingent upon maintenance payments, distinguishing between two distinct legal obligations: financial support under Section 125 CrPC and parental access under the Guardians and Wards Act. The Court held that denying access due to non-payment of maintenance would violate the child’s fundamental right to parental care under Article 21 of the Constitution.
"The child is not a pawn in a financial dispute. The right to know, to be known, and to be emotionally supported by both parents cannot be held hostage to monetary disputes."
The Court further observed that rigid, inflexible access schedules fail to account for the child’s evolving needs, particularly in cases where parents reside in proximity. It emphasized that modern parenting requires technological tools to maintain bonds, especially when physical meetings are limited. The Court noted that video calls on Tuesdays and Thursdays would provide stability and predictability, reducing anxiety for the child.
The Court also rejected the respondent’s claim that phone access equated to harassment, stating that such allegations require concrete evidence and cannot be used to justify total denial of contact. The Court underscored that the child’s best interests must be the sole guiding principle, not parental grievances.
The Verdict
The petitioner prevailed. The Court held that parental access must include structured phone and video communication and that scheduling must allow reasonable flexibility to accommodate special occasions. The Court disposed of both the writ and contempt petitions on the basis of the parties’ mutually agreed undertakings.
What This Means For Similar Cases
Access Must Include Digital Communication
- Practitioners must now draft access orders to explicitly include scheduled phone or video calls, not just physical meetings
- Courts will no longer accept oral objections to digital contact without evidence of abuse or disruption
- Failure to include digital access in orders may be grounds for appellate modification
Flexibility Overrides Rigidity
- Fixed schedules (e.g., "every third Saturday") are now disfavored unless justified by exceptional circumstances
- Orders must permit rescheduling for birthdays, holidays, or emergencies, as long as notice is given
- Courts will prioritize the child’s emotional calendar over parental convenience
Maintenance and Access Are Independent
- Non-payment of maintenance cannot be used to deny or restrict access
- Courts will treat maintenance arrears as a separate enforcement matter under Section 125 CrPC
- Petitioners must still pursue maintenance claims independently, but cannot be barred from access pending resolution
