Competing Rights Of Parents Subservient To Interest Of Child: Delhi High Court Stays Order Granting Daily Visitation Right To Putative Father

The Delhi High Court recently stayed a Family Court's order granting visitation rights to the putative father of a 2½ years old child on a daily basis. 

"The order ultimately passed requires the minor child of 2½ years to be moved out of the residence and be taken by the respondent for a period of 2 hours on a daily basis. The Principal Judge has clearly failed to weigh or consider the disruptive and deleterious impact that this may have," Justice Yashwant Varma observed.

The Bench added,

"It is apparent that the court proceeded on the incorrect path of seeking to consider and evaluate the competing rights of parents to be accorded custody and/or granted rights of visitation. The above claims which are raised by competing parents must necessarily be recognized as being subservient to the interest of the child which has always and consistently been recognized as being paramount."

The development comes in a civil miscellaneous main preferred by the mother of the child against the Family Court's order permitting the Respondent-father to take the child out of her care during 6 P.M. and 8 P.M. daily. The Family Court had taken note of the fact that both the Petitioner and the Respondent were living in the same building.

While denying this fact, the petitioner-mother moved the High Court arguing that Respondent is not residing there since many months and is now taking the 2 year old outside to various unknown and undisclosed locations on the strength of the Impugned Order which is creating havoc on the schedule of the minor child.

She further submitted that a putative father is not akin to a biological father under the Hindu Minority and Guardianship Act, 1956 and that the routine of the mother and the child cannot be subjected to such a strict, onerous and unreasonable regime.

Before the Family Court, the petitioner had argued that since the respondent-father has denied the marriage, therefore the child is illegitimate and according to Section 6 of the Hindu Minority and Guardianship Act, 1956 he is not entitled for the custody of the child and therefore, visitation rights also cannot be granted to the respondent.

On the other hand, the respondent had admitted the birth of the child, though he stated that no valid marriage between him and the petitioner took place. Thus, he had not denied the paternity of the child and had admitted in the application that the child belongs to him.

Stating that the matter requires consideration, the High Court has listed the case for hearing on January 7, 2022. "Till the next date of hearing, there shall be stay of the order dated 28th October, 2021," it ordered.

Petitioner was represented by Senior Advocate Geeta Luthra, with Advocates Shivani Luthra Lohiya, Nitin Saluja, Asmita Narula, Anubhav Singh and Priyanka Prasanth.

Respondent was represented by Senior Advocate Sandeep Sethi with Advocates Saurav Upadhyay, Gargi Tuli, Anuj Dhir and Hardikaa.

Case Title: Kinri Dhir v. Veer Singh

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