Visitation Rights Of Parent Cannot Be At Cost Of Child's Health & Well-Being : Supreme Court

Observing that the health of a child cannot be compromised while deciding the disputes between the parents, the Supreme Court recently modified the directions allowing interim visitation rights to a father.A bench of Justices Vikram Nath and PB Varale allowed an appeal against the order of the Madras High Court to a limited extent of modifying the place of visitation for the father to meet his 2-year-old daughter at a place where the mother along with the minor daughter resides. "The interest of the minor child is paramount. In the process of adjudicating upon the rights of the parents, her health cannot be compromised," the Court observed while holding that the visitation rights of the parent cannot be at the cost of health and well-being of the child.Brief factsAs per the brief facts, the SLP challenges the judgment of the Madras High Court dated March 21. By the said order, the High Court dismissed the Appellant-mother's Miscellaneous Appeal and upheld the interim visitation rights granted to the Respondent-father. It also modified the directions passed by the Family Court. In this case, the parties got married in 2021 and subsequently had a daughter on June 6, 2022. Both parties have been living separately since August 18, 2022. Next year in June 2023, the mother filed a petition for dissolution of marriage on grounds of cruelty Section 13(1)(is) of the Hindu Marriage Act, 1955 (HMA).The father in October 2023 preferred an application under Section 26 of the HMA in the divorce proceedings, seeking visitation rights during the pendency. This was allowed by the Family Court through an order dated November 10, 2023. It directed that the Appellant should take the child to Karur, Tamil Nadu, every Sunday in the morning from 10:00 Hours to 12:00 hours, and handover the child to the Respondent in the campus of the Kalyana Pasupatheswarar Temple, Karur. The mother approached the High Court against the Family Court's order on grounds that she is now residing in Madurai and the distance between Madurai and Karur is 150 km. She pleaded that travelling 300 km every Sunday would be adversarial to the health of the child. Further, she also claimed that the visits would be a source of mental agony to her as there is a continuous death threat to her life and the child. What did the High Court say?The High Court dismissed the Miscellaneous Appeal. It observed that the father is also a natural guardian of the child and therefore entitled to his custody. The High Court made attempts at uniting the parties in the interest of the child, but the reconciliation attempts have failed.The High Court while noting its disappointment towards the failed attempts at reconciliation, observed that the agony of missing the early childhood of one's offspring cannot be prolonged for any of the parties. It therefore modified the directions of the Family Court and directed the mother to take the child to Karur every Sunday and hand it over to the father between 10:00 AM to 02.00 PM for 2 months. After two months, the child be handed over for alternative weekends till the Guardian Wards petition is decided. This order is now challenged before the Supreme Court on grounds that owing to the history of domestic violence, threat to life, and negligence of the father, visitation rights to the father would be completely averse to the best interest of the minor daughter.What did the Supreme Court observe?The Supreme Court observed that while the observation of the High Court that the father being the natural guardian cannot be denied the care and the custody of the child, the same cannot override the interest of the child. Without going into the submissions made by the mother pertaining to domestic violence and life threats at the stage of deciding interim visitation rights, the Court held that the interest of the minor child is paramount. In this regard, the Court said: "Further, while the respondent has the right to visit the child, it cannot be at the cost of the child's health and wellbeing. Keeping in mind the best interest of the child and the interests of the parents, we agree with the High Court to the extent of granting certain visitation rights to the respondent, but the directions and set up to enable the same appear to be adversarial to the child and require to be modified."The Court further stated that no "cogent reasons" have been provided as to why the Family Court and subsequently the High Court allowed the visitation to take place in Karur. Considering the best interest of the child, her tender age and health, the Court directed that the father shall be allowed to visit minor daughter every Sunday between 10:00 am to 2:00 pm at Madurai in the presence of the mother. Case Details: SUGIRTHA v. GOWTHAM, SLP (C) NO. 18240 OF 2024Citation : 2024 LiveLaw (SC) 1042Click Here To Read Order

Visitation Rights Of Parent Cannot Be At Cost Of Child's Health & Well-Being : Supreme Court

Gursimran Kaur Bakshi

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