Parent Can’t Be Guest In Child’s Life, It’s Unjust To Allow Parents During Visitation For Couple Of Hours To See Child As Guest Visitor: Tripura HC

The Tripura High Court has observed that a parent cannot be a guest in the life of child and that it is not just and proper to allow parents at the time of visitation for couple of hours to see their child at an alone place as a guest visitor.

The Court was deciding a petition filed under Section 482 of CrPC for setting aside the judgment passed by the Additional Sessions Judge in a criminal appeal.

A Single Bench of Justice T. Amarnath Goud held, “No parents can be a guest in the life of the child. It is not just and proper to allow the parents in the time of visitation for couple of hours to see the child in an alone place as a guest visitor. Their matrimonial and other cases are pending in the concerned Courts and both the mother and father are making allegation and counter allegation against each other and this Court is not inclined to enter into the said controversy since, that is not the subject matter before this Court.”

The Bench also held that if visitation rights are granted for limited hours, it may not be sufficient for the child to have comfortable time with the father or mother, whoever may be the case.

Senior Advocate B.N. Majumder and Advocates S. Lodh and B. Paul appeared for the petitioners while Advocate P. Roy Barman and S. Bhattacharjee appeared for the respondent.

In this case, the petitioner (father) and respondent (mother) were married in 2015 and were blessed with a daughter. Both the husband and wife stayed in Udaipur and the respondent without intimating anything to anybody, left the matrimonial house in 2022 leaving behind the minor daughter, aged about 4 and half years, who was sleeping at that time. When the petitioners came to know that the respondent was missing, they searched for her to all known places but could not find her. Hence, they filed a missing diary and published missing report in all leading newspapers of the State. On finding the respondent, it was informed to the petitioner at the police station that she denied to come back to the house of the petitioners and even refused to go with parents. The respondent made a declaration that she had left the house voluntarily and did not want to go back with the petitioners and would never ask for the custody of the minor.

Subsequently, the petitioner was also intimated that the respondent eloped with another person and married another person declaring that she would give divorce to him on mutual consent. Thereafter, the respondent filed a case against the petitioners under the Domestic Violence Act, claiming custody of the minor daughter along with a prayer for temporary custody of the child. The JMFC passed an ex-parte order for the custody of the child in favour of the respondent. The Trial Judge heard the matter and recalled the interim order of custody giving liberty to the wife to seek right of visitation. The respondent did not resort to the right of visitation and rather filed an appeal against the said order and the Appellate Court allowed the custody of the child to the respondent. Being aggrieved by and dissatisfied with the said order, the petitioners were before the High Court.

The High Court in view of the above facts noted, “The courts should decide the issue of custody only on the basis of what is in the best interest of the child. The child is the victim in custody battles. In this fight of egos and increasing acrimonious battles and litigations between two spouses, more often than not, the parents who otherwise love their child, present a picture as if the other spouse is a villain and he or she alone is entitled to the custody of the child. The court must, therefore, be very wary of what is said by each of the spouses.”

The Court said that a child, especially of tender age, requires the love, affection, company, and protection of both parents which is not only the requirement of the child but is his/her basic human right. It further said that just because the parents are at war with each other, it does not mean that the child should be denied the care, affection, love, or protection of any one of the two parents.

“A child is not an inanimate object which can be tossed from one parent to the other. Every separation, every reunion may have a traumatic and psychosomatic impact on the child. Therefore, it is to be ensured that the court weighs each and every circumstance very carefully before deciding how and in what manner the custody of the child should be shared between both the parents”, added the Court.

Furthermore, the Court observed that even if the custody is given to one parent, the other parent must have sufficient visitation rights to ensure that the child keeps in touch with the other parent and does not lose social, physical and psychological contact with any one of the two parents; and it is only in extreme circumstances that one parent should be denied contact with the child.

“The wider the gap, the bonds get broken quicker and the child is left confused and ends up believing this. Such acts of any parent in separating a child from the other parent should be nipped in the bud otherwise the separated parent ends up becoming a guest in the life of the child. Overnight custody must be encouraged wherever possible and mere meeting and spending time with the parent for couple of hours in court premises, hotel, theatre, Mall, park etc., under the supervision of other parent or relative will not serve any purpose of visitation as the child will be under psychological pressure and will not be comfortable”, also noted the Court.

The Court said that “Laws Are Made For Citizens And Citizens Are Not Made For Laws”, in order to put a quietus to the litigation between father, mother and child and that the children cannot wait too long as they are not people of tomorrow, but are people of today. It added that they have a right to be taken seriously and to be treated with tenderness and respect.

“Before conclusion, I would like to observe that it is much required to express our deep concern on the issue. Divorce and custody battles can become quagmire and it is heart wrenching to see that the innocent child is the ultimate sufferer who gets caught up in the legal and psychological battle between the parents. The eventful agreement about custody may often be a reflection of the parents’ interests, rather than the child’s”, observed the Court.

The Court concluded that the child’s psychological balance is deeply affected through the marital disruption and adjustment for changes and to focus on the child rights in case of parental conflict is a proactive step towards looking into this special situation demanding a specific articulation of child rights.

“Since, this case is only confined with regard to the custody of the child and the child’s interest is paramount to this Court and even to the society and considering the issue from the point of view the child, this Court feels that the child cannot be deprived of the love and affection of both parents. … Thus, the custody of the child should be with both the parents”, directed the Court.

Accordingly, the High Court disposed of the criminal petition.

Cause Title- Rakesh Chandra Saha & Ors. v. Puja Dey Saha

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