Matrimonial Disputes & Grave Allegations Shouldn’t Be Impediment To Child’s Right To Have Affection Of Both Parents: SC
The Supreme Court observed that matrimonial disputes and grave allegations between parents should not be an impediment to a child’s right to have care, company, and affection of both the parents
The appeal before the Apex Court arose from a Special Leave Petition challenging the validity of the judgment passed by the Madras High Court’s Madurai Bench dismissing the appellant–mother’s miscellaneous appeal and upholding the interim visitation rights granted to the respondent father.
The Division Bench comprising Justice Vikram Nath & Justice Prasanna B. Varale said, “While the observation of the High Court that the father being the natural guardian cannot be denied of the care and custody of the child and that his agony of missing his child’s childhood cannot be prolonged, is sound and fair, but the same cannot override the interest of the child.”
Advocate Akhil Ranganathan represented the Appellant.
The parties, in this case, got married in the year 2021. Shortly after the birth of their child, the appellant filed a petition for dissolution of marriage under Section 13(1)(ia) of the Hindu Marriage Act, 1955, on the ground of cruelty. It was further submitted that the parties had been living separately since August 18, 2022. The Respondent in October 2023, had preferred an application under Section 26 of the HMA in the divorce proceedings, seeking visitation rights and the Family Court allowed the same.
It was directed that the appellant should take the child to Karur, Tamil Nadu, every Sunday in the morning for 2 hours and hand over the child to the respondent in the campus of the Kalyana Pasupatheswarar Temple, Karur.
The Appellant approached the High Court contending that she had shifted to Madurai and the long travel of 300 kms every Sunday would be adversarial to the health of the child and also cause mental agony. Maintaining the father’s visitation rights, the High Court further ordered that after 2 months, the appellant would hand over the child for alternative weekends till the Guardian Wards Original Petition is decided. Challenging the same, the appellant approached the Apex Court.
It was the case of the appellant that owing to the history of domestic violence, threat to life, and negligence of the respondent, such visitation rights to the respondent would be completely averse to the best interest of the minor daughter.
The Apex Court clarified that the submissions on behalf of the appellant pertaining to the history of domestic violence and threat to life cannot be gone into at this stage of deciding interim visitation rights. These are serious allegations which require careful consideration, both on facts and evidence.
Though the child had effectively been in the care of the respondent for approximately two months only, as the parents started living separately shortly after her birth, the Bench observed that the same does not compromise the respondent’s rights as a father to visit and enjoy the company of his daughter.
“The matrimonial disputes and grave allegations between parents should not be an impediment to a child’s right to have care, company, and affection of both the parents. It is evident from multiple failed attempts at mediation that the parties are not inclined to reconcile. While no guardianship or custody petition has been preferred by the respondent, the visitation rights of the father, as prayed in the application, require a careful and empathetic consideration during the pendency of the divorce proceeding”, it held.
Keeping the interest and well-being of the child as the priority, the Bench found it appropriate and just to move the place of visitation from Karur to Madurai. Partly allowing the appeal, the Bench held that the Respondent-father shall be allowed to visit the minor daughter every Sunday for 2 hours and the appellant-mother though must be present, shall stay at a distance of approximately 10 feet.
Cause Title: A v. B (Neutral Citation: 2024 INSC 1036)
Appearance:
Appellants: Advocates Akhil Ranganathan, Aadarsh Kothari, R.l.dhilipan Pandian, Rishabh Dahiya, Utpal Sharma, S.C.V Vimalpani, M/S. Vimalpani & Co., AOR
