'Love Of Both Parents Is Child's Basic Right': Jharkhand High Court Upholds Father's Visitation, Declines To Disturb Mother's Custody

A Division Bench comprising Justice Sujit Narayan Prasad and Justice Akhil Kumar was hearing an appeal filed by the father against the September 23, 2024 order of the Family Court, Ranchi, partially allowing his application under Section 26 of the Hindu Marriage Act, 1955.

The parties were married on July 16, 2012, and had a son born on March 24, 2021. According to the husband, his wife left the matrimonial home on August 19, 2023, taking their child with her. The husband alleged that his wife had deserted him, was living in adultery and had denied him visitation rights despite his repeated attempts to contact her. He also submitted that he had been meeting the expenses of his wife and child and was willing to have them return.

The Family Court declined to grant temporary custody to the father, observing that disturbing the child's existing custody with his mother would adversely affect his mental and psychological well-being. However, it granted the father visitation rights for two hours once every month and permitted telephonic interaction through WhatsApp.

Examining the appeal, the High Court referred to Sections 6 and 13 of the Hindu Minority and Guardianship Act, 1956, observing that although the father is recognised as a natural guardian, the paramount consideration in deciding custody is the welfare of the child.

The Bench emphasised that custody disputes must be decided on the basis of the child's welfare rather than the competing rights of the parents. It noted that the Court's parens patriae jurisdiction enables it to act as a guardian of the child and protect the child's best interests, even where this requires overriding parental wishes.

The Court observed that the child had been residing with his mother since the parties separated and was approximately three-and-a-half years old when the Family Court passed its order. It noted that disturbing his existing custody could adversely affect his welfare. However, while considering the father's visitation rights, the Court observed:

“So far as the prayer of petitioner regarding exercising of his visitation right is concerned, it has been observed that admittedly petitioner is biological father of the child who now aged about 5 years and six months and for proper upbringing of the child, he requires love, affection, care, company and protection of both parents and it is not only requirement of the children but it is their basic human right…”

The Bench noted that the Family Court had considered the importance of the love, care and affection of both parents while granting the father monthly visitation and telephonic interaction with the child. Referring to the Supreme Court's decision in Yashita Sahu v. State of Rajasthan, AIR 2020 SC 577, the High Court further observed that even when custody remains with one parent, the other must have sufficient visitation rights to ensure that the child does not lose social, physical and psychological contact with either parent.

Finding that the Family Court had considered the relevant factors governing interim custody and visitation, the High Court held that its order suffered from no perversity, arbitrariness or illegality warranting interference.

Accordingly, the Court declined to interfere with the Family Court's order.

Appearance:

For the Appellant: Mr. Nikhil Ranjan, Advocate

For the Respondent: Mr. Manoj Kr. Choubey, Advocate; Mr. Madhav Prasad, Advocate