Delhi HC Dismisses Plea Seeking Review Of Order Giving Visitation Rights To Father Only If He Resided In Same Building As That Of Child

Justice Kameswar Rao observed:

"In any case, this Court, while modifying the impugned order of the Trial Court dated October 28, 2021, had noted the fact that the minor child is of tender age of less than three years and it is no denial to the fact that ultimately while giving visitation rights, it is the interest of the child, which is paramount. I see no reason to entertain the petition, the same is dismissed."

This Review Petition was filed by the respondent/applicant seeking review of the order dated March 24, 2022 whereby this Court granted him visitation rights to the minor child, subject to the respondent/applicant residing in the same property. He informed the Court that he had also filed an SLP previously before the Supreme Court challenging the order to the extent of the condition i.e. allowing visitation only when he's living in the same property.

Senior Advocate Kapil Sibal on behalf of petitioner argued that the visitation rights granted to the respondent/applicant were made subject to him staying in the above premises, is clearly untenable, as it was represented before the Court that the respondent applicant had moved out of the said premises and this fact has been noted by this Court.

He further argued that the conclusion of HC that the Trial Court has granted the benefit of visitation to the respondent / applicant for meeting the child in the said property only, is not correct as no such condition was put by the Trial Court. He stated such a condition could not have been put by the High Court, more so when the Court had granted permission to take the child to the park and also observed that he should not take the child out of the territorial limits of the Courts in Delhi.

By that he meant that, the respondent / applicant was at liberty to take the child anywhere within Delhi. Hence, the condition needs to be reviewed / withdrawn.

On the other hand, Ms. Lohiya contested the review on the ground that the affidavit in support of the review petition predates the petition itself and as such is no affidavit in the eye of law. She stated, condition No.III i.e. about visitation rights only when the respondent/applicant resides in the same property has been rightly put as, it was the case of the respondent / applicant himself in the original matter- that the parties are living at the address in a service apartment arranged by the respondent / applicant and the petition / non-applicant and the child are living upstairs in the same building.

She also stated, in fact it is the case of the petitioner / non-applicant that the respondent / applicant was not staying at the premises and has been staying at the Oberoi Hotel. She stated that condition No.III put by this Court is an appropriate condition in the facts of this case and seeks the dismissal of the review petition.

Court recorded that when the Trial Court had passed the impugned order, it was the case of the respondent / applicant that he was residing in premises and as per his version he continued to stay there even during the pendency of the present petition till December 20, 2021. However, he has shifted out of the said premises, as he felt dejected because of the fact that the visitation hours were modified and were to be supervised by the Local Commissioner.

"Even this Court vide order dated December 15, 2021 has allowed visitation though as an interim arrangement to meet the child every Saturday from 4.00 PM to 7.00 PM on the second floor of the building. It appears, the said direction has been passed on the submission made on behalf of respondent / applicant that he be permitted to collect the child and take him to a room on the second floor of the same building, which is in his exclusive possession."

Court said that in any case, the high court while modifying the impugned order of the had noted the fact that the minor child is of tender age of less than three years and it is no denial to the fact that ultimately while giving visitation rights, it is the interest of the child, which is paramount. Trial Court dated October 28, 2021.

In view of the above, the Court didn't find any reason to interfere with the order and dismissed the Review Petition.