"The technology has been developed where the virtual interaction/visitation can also be taken as a part of the right of visitation. The society changes with the advancement of technology and the medium of education, so the concept of social justice, which is dynamic and not static."
The Calcutta High Court on Wednesday recognized the concept of "virtual visitation" in context to the parents who do not have custody of children and are unable to exercise their physical visitation rights, due to the lockdown.
The division bench of Justice Soumen Sen and Justice Harish Tandon observed that in times of crisis where prospects of visitation by physical interaction stands impedes, the courts may resort to technological advancements to cater "social justice".
"The physical distancing is the need of an hour and because of the restrictions on the movement of the vehicles and other means of commutation, it impedes visitation by physical interaction. The technology has been developed where the virtual interaction/visitation can also be taken as a part of the right of visitation. The society changes with the advancement of technology and the medium of education, so the concept of social justice, which is dynamic and not static," the bench observed.
The order was passed in a PIL filed by Hriday Nest of Family Harmony, for framing guidelines concerning children who are disassociated with the parents.
It was highlighted in the petition that the attempts to approach the Government instrumentality for interacting with children not in institution, had gone in vain as the portal or the dedicated website was not responding.
While the court recognized the parents' statutory as well as a social right to interact with their children, it refused to issue any guidelines for visitation during the lockdown. It held that the remedy for the same lies in the law and the court need not make any additions to the same.
"The Court cannot laid of the application filed by either of the parents for virtual visitation but should have activated the process as the welfare of the child is of paramount consideration. Even after observing the same, the purpose of litigation as filed, cannot be used as a tool for ventilating the grievance, which is of a personal nature as the adequate remedies are provided in law.
…When one of the parent wishes to interact with the child in custody of the other parent, we also feel that the remedy lies in law and the approach can be made by an aggrieved parent," the court said.
The bench further reposed its confidence in the concerned Judges dealing with such cases and observed,
"We are confident that the concerned Judge is alive of the fact that the child being vulnerable and needs constant support both mentally and physically and the welfare being the paramount consideration, shall take up the issue as and when raised on an urgent basis depending upon the given facts and circumstances."
Before parting, the court also emphasized that visitation rights are not only crucial wrt to welfare of children but they also play a crucial role in reconciliation of parents.
"The parent has a statutory as well as a social right to interact with the child and concern for his wellbeing. It is no gainsaying that the visitation/interaction with the child may sometime yield a positive result as the child can act as a bridge between the warring parents and may fill up the gaps to restore the institutional chord. It is no doubt true that the welfare of the child is paramount and visitation is one of the integral parts of restoring the broken thread between the litigating parents," the court remarked.
Virtual visitation rights have also been recognized by the Supreme Court in Tanuj Dhawan v. Court in its own motion. While disposing of this case, a bench of Justice NV Ramana, Justice SK Kaul and Justice BR Gavai had ordered last month,
"The grievance of the petitioner is that because of lockdown, the children are unable to interact with their parents even though they have visitation rights for the purpose. If they have visitation rights, we suggest that electronic contact instead of physical visits can be substituted in these times. The parties can arrive at a mutually acceptable arrangements in this behalf. If there is an aggrieved party, the same can approach the Family Court."
Case Title: Hriday Nest of Family Harmony v. The State of West Bengal & Ors.
Case No.: CAN 3092/2020 in WP 5399/2020
Quorum: Justice Soumen Sen and Justice Harish Tandon
Appearance: Advocates Sakya Sen and Rohit Banerjee (for Petitioner); Advocate General Kishore Dutta and Advocate Srijib Chakraborty (for State)
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