Mumbai: Upholding actor Shweta Tiwari’s custody of her minor son, the Bombay High Court on Thursday said just because she is busy does not mean she cannot look after him.

“In our view, the issue of welfare of the minor cannot be determined on the sole parameter of the work commitment of one parent and availability of ample time with another. The fact that the respondent is a busy actress cannot be construed to unfavourably judge her suitability to have the custody of Master R,” said a bench of Justices S S Shinde and Nijamoodin Jamadar.

They, however, allowed Abhinav Kohli (39) virtual access for minimum 30 minutes on weekdays and 2 hours physical access on weekends. “Before parting, we hope and trust the petitioner and respondent, who claim to be adept at playing characters in reel life, act in the best interest of Master R in real life,” Justice Jamadar wrote for the bench.

The verdict was passed in a habeas petition by Tiwari’s estranged husband Abhinav Kohli to produce the child she has “absconded” with since October 2020 and to transfer custody to him. Both live in different wings of the same apartment. They married in July 2013 and their son was born in November 2016.

Kohli’s petition said Tiwari is extremely busy with her professional commitments and has no time for parenting. In contrast, in 2019 he decided not to take up professional work and devote his entire time, effort and attention to bringing up his son. Tiwari’s reply referred to police complaints that Kohli has proven to be a threat to her, her family members and, particularly, the child.

Kohli’s advocate Swapana Kode argued that the child’s welfare can be improved by a change in custody. Tiwari’s advocate Hrishikesh Mundargi countered that only custody of a mother can be said to be proper custody during tender age.

The judges said in determining custody, the paramount consideration is the welfare of the minor and not the legal rights of the parents. Also, considering the child’s age, the tender years rule, which has statutory recognition, is brought into play. They noted that while allegations of neglect and lack of care attributed to Tiwari are in the realm of disputed questions of facts, there is an equal body of counter allegations against Kohli. They also said the issue of Tiwari’s work commitments putting hindrance in the development of the child is again an argument that needs to be adjudicated.

“In the light of the material on record, we are of the view that there are no exceptional circumstances which would warrant departure from the tender years rule. Nor is there such material which prima facie indicates that custody with respondent (Tiwari) is detrimental to the welfare and development of Master R,” said the judges, declining to direct a change in custody. Kohli has been allowed to move the family court.