Supreme Court: Orders Giving Visitation Right/Temporary Child Custody Cannot Be Passed In A Proceedings For Restitution Of Conjugal Right

The respondent (husband) should have filed a separate and independent petition under Section 26 of the Hindu Marriage Act, 1955, instead of securing an Order in the proceedings pending under Section 9 of the Act. The Order dated 03062019 giving visitation rights or temporary custody of the child to the respondent (husband) is, thus, patently illegal. {Para 7}

 IN THE SUPREME COURT OF INDIA

Transfer Petition (Civil)  No. 964/2021

Date of Order: 08.12.2022

Priyanka Vs. Santoshkumar

Hon'ble Judges/Coram:

Surya Kant and J.K. Maheshwari, JJ.

Citation:  MANU/SCOR/123274/2022.

Print Page

Supreme Court alters order requiring father to visit son in court premises considering welfare of son

 In a matter of the present nature, it is needless to mention,

as rightly observed by the High Court, the welfare of the child is

also to be kept in view by the Court. However, at this stage we

find that the repeated visitation rights in the Court premises,

would also not be in the interest of the child as the environment

during which the visitation rights are exercised, would also

matter.

Therefore, at this stage, we see no reason to dispose of the

instant petition but we direct that the visitation rights, as

granted by the Family Court, shall stand altered for the present

whereby the interim custody of the child shall be made over to the petitioner-father by the respondent-mother at the entrance of the RP Mall, Kollam, Kerala at 11:00 a.m on Sundays. The petitioner father may take the child to the said mall and exercise the visitation rights till 02:00 p.m. of the same day. The custody of the child shall be made over to the respondent-mother at the same spot (entrance of the mall) where the child was made over to the petitioner-father at 02:00 p.m.

S U P R E M E C O U R T O F I N D I A

RECORD OF PROCEEDINGS

Petition(s) for Special Leave to Appeal (C) No(s). 2437/2023

VERSUS

JUDGMENT

Date : 03-10-2023 These matters were called on for hearing today.

CORAM :

HON'BLE MR. JUSTICE A.S. BOPANNA

HON'BLE MR. JUSTICE MANOJ MISRA

Print Page

Whether family court can entertain a child custody dispute if, under DV Act proceeding husband is restrained from communicating with the child?

Bearing in mind the allegations that were laid by the petitioner the Court notes that the respondent here stood restrained from communicating with the children and the complainant in any manner whatsoever in light of the order passed in the PWDV proceedings. It was further provided in those proceedings that the respondent would not disturb the custody of the children.

This very aspect was noticed and underlined by a learned Judge of this Court in Amit Kumar and another Vs. Charu Makin [2017 SCC OnLine Del 7861] where the Court held:-

10. It is thus evident that notwithstanding anything contained in any other law as an interim measure in the best interest of the child and to avoid any harm to the interest of the child/children, the Court under Section 21 of the PWDV Act can pass order granting temporary custody of the child/children and/or make necessary arrangements for the visit of the child. However, PWDV Act is not a final remedy for the custody and guardianship issues of a minor child. Section 7(g) of the Family Courts Act, 1984 vests jurisdiction in a Family Court to decide suits or proceedings in relation to the

guardianship of a person or the custody of or access to any minor.

IN THE HIGH COURT OF DELHI AT NEW DELHI

 C.R.P. 52/2022 & CM APPL. 18406/2022 (stay)

SHILPA SINGH  Vs VIKAS KHANNA 

CORAM:

 MR. JUSTICE YASHWANT VARMA

Dated:  13.04.2022

Print Page

Whether father can file application under domestic violence Act to seek visitation rights to child?

It is contended that since Section 21 does
not provide any right to the husband to prefer such application, and
since the legislature has not provided such right to the husband,
except as stipulated in Section 21 of DV Act, the Court ought not to
have entertained the application and granted relief as prayed by
respondent no.1. If the interpretation advanced by the applicant is
accepted, it would defeat the whole purpose of the statute. It is well
settled principle of interpretation that Court must start with the
presumption that legislature did not make a mistake and it must
interpret so as to carry out the obvious intention of legislature and

that it must not correct or make up a deficiency nor the Court read
into a provision any word which is not there particularly when literal
reading does not lead to an intelligible result. 
Where however, the words used
are capable of bearing two or more constructions, it is necessary to
adopt purposive construction, to identify the construction to be
preferred by posing the following questions. (i) what is the purpose
for which the provision is made; (ii) what was the position before
making the provision; (iii) whether any of the constructions
proposed would lead to an absurd result or would render any part of
the provisions redundant; (iv) which of the interpretations will
advance the object of the provision. The answer to these questions
will enable the Court to identify the purposive interpretation to be
preferred while excluding others. Such an exercise is involving
ascertainment of the object of the provision and choosing the
interpretation that will advance the object of the provision can be
undertaken only where the language of the provision is capable of
more than one construction. It is further observed that Section 21 is
amenable to two interpretations as is being highlighted by the

parties, in such event only that interpretation which advanced the
object of the provision can be accepted. It is worthwhile to note that
the Act enacted to prevent the occurrence of domestic violence in the
society and keeping in view that several protection orders including
the safety of the aggrieved person and the child have been
contemplated to be passed. Therefore, the cause of the safety of the
aggrieved person or the child is always warrants to be taken into
account in interpreting the provision. In such situation if the
interpretation given on behalf of the wife aggrieved parties accepted
it will render the provision incomplete as in case where wife –
aggrieved party seeks custody of the child, if the child is in custody of
the husband and an order of custody is passed in favour of the
aggrieved party, visitation right can be granted to the husband. But if
custody lies with the wife – aggrieved party, than the husband will
have no remedy of visitation right if the interpretation as
contemplated by the wife – aggrieved party is given effect to and
thereby it can easily be said that interpretation given by the
aggrieved party – wife will never advance the cause of the child. On
the other hand, if it is held that the husband, in absence of any
application for grant of custody can maintain his application for
visitation right will advance the object of the provision as in case of
child being in custody of the husband, application for custody can be
filed by the wife wherein the husband can have visitation right if
order is of custody of child passed in favour of the aggrieved party.
In other situation, when the custody of the child lies with the wife,
there would be no occasion for the wife for filing an application for
custody. In that situation, husband will have remedy to have
visitation right by filing application to that effect. The said
interpretation and observations can be applied in the present case.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPLICATION NO.186 OF 2018

Mrs.Payal Sudeep Laad @ Payal Sharma, Vs  Sudeep Govind Laad,

CORAM : PRAKASH D. NAIK, J.

Dated : 2nd November 2018

Print Page

Whether court should decide issue of custody/visitation rights of minor children on basis of consent of parties?

Thus, it follows that the issue of custody of minor children cannot be decided by the Courts dealing with Petitions under the said Act or Petitions dealing with custody/visitation rights of children only on the basis of consensus or consent of the parties. Even under Rule 3 of Order XXIII of the Civil Procedure Code, 1908, a compromise can be recorded provided it is otherwise legal and is not against the public policy. In a case where contesting parties to a Petition under the said Act or under any other Enactment place compromise on record dealing with custody and visitation rights in relation to minors, the Court cannot the accept compromise mechanically. Before accepting the compromise and permitting parties to act upon the compromise, the Court has to apply its mind to the well settled law. What is paramount is what is conducive to the welfare of the children. Therefore, it is the duty of the Court to consider whether the compromise is for the welfare of the children. As stated earlier, the consent of the parties and even the personal law dealing with the issue of custody of children cannot and must not supersede paramount considerations laid down under Section 17 of the said Act. The Court has to be very cautious especially when parties by consent agree to disturb the custody of the children.

IN THE HIGH COURT OF BOMBAY

Family Court Appeal No. 76 of 2016

Decided On: 08.12.2016

Appellants: "A"

Vs.

Respondent: "B"

Hon'ble Judges/Coram:

Abhay Shreeniwas Oka and Anuja Prabhudessai, JJ.

Citation: 2017(6) MHLJ 134

Print Page

Whether application by father for visitation rights is maintainable under domestic violence Act?

As I have already indicated that Section 21 is amenable to
two interpretations as is being highlighted by the parties, in such event
only that interpretation which advanced the object of the provision can
be accepted. It is worthwhile to note that the Act was enacted to
prevent the occurrence of domestic violence in the society and keeping
in view that, several protection orders including the safety of the
aggrieved person and the ‘child’ have been contemplated to be
passed. Therefore, the cause of the safety of the aggrieved person or
the child is always warrants to be taken into account in interpreting the
provision. In such situation, if the interpretation given on behalf of the
wife-aggrieved party is accepted, it will render the provision incomplete
as in case where wife-aggrieved party seeks custody of the child, if the
child is in custody of the husband and an order of custody is passed in
favour of the aggrieved party, visitation right can be granted to the
husband. But, if custody lies with the wife–aggrieved party, then the
husband will have no remedy of visitation right if the interpretation as
contemplated by the wife-aggrieved party is given effect to and thereby
it can easily be said that interpretation given by the aggrieved party-wife
will never advance the cause of the child.
[15] On the other hand, if it is held that the husband, in
absence of any application for grant of custody, can maintain his
application for visitation right will advance the object of the provision as
in case of child being in custody of the husband, application for custody
can be filed by the wife wherein the husband can have a visitation right
if order is of custody of child passed in favour of the aggrieved party. In
other situation, when the custody of the child lies with the wife, there
would be no occasion for the wife for filing an application for custody as
it has happened in the instant case. In that situation, husband will have
remedy to have visitation right by filing application to that effect. Under
the circumstances, I do find that the appellate court was quite justified
in holding that even in absence of application for custody being there,
by the aggrieved party, application of visitation right in terms of the
proviso to Rule 21 can be maintained. Thus, I do not find any merit in
the Criminal Revision Petition No.16 of 2015. Hence, it is dismissed.
IN THE HIGH COURT OF MANIPUR
AT IMPHAL
CRIL.REVN. PETITION NO.16 OF 2015
Smt. Huidrom Ningol Maibam Ongbi
Omila Devi, 
V
Shri Inaobi Singh Maibam, 
BEFORE
 CHIEF JUSTICE R R PRASAD

Dated: 26.10.2016.
 Citation: 2017 CRLJ659

Print Page

Whether father who is ready to pay maintenance to daughter is entitled to get visitation rights?

 Though this is not a petition concerning the visitation rights of the parties, a
father who is ready and willing to pay maintenance for his daughter is also entitled
to see his daughter at least on festivals, her birthday or at regular interval. 
25. The appellant is resident of Delhi whereas the respondent is residing
in Mumbai and the daughter is studying in Lonavala and staying in hostel.
26. We, therefore, permit the appellant to visit his daughter at Lonavala
and meet her in her school. Necessary instructions in this regard shall be
given by the respondent to the Principal of the school to enable the appellant
to meet his daughter on her birthday, festivals or once in three months. 
IN THE HIGH COURT OF DELHI AT NEW DELHI
 Date of Decision : October 20, 2016
 MAT.APP.(F.C.) 79/2014
MANPREET SINGH BHATIA 
v
SUMITA BHATIA .
CORAM:
MR. JUSTICE PRADEEP NANDRAJOG
 MS. JUSTICE PRATIBHA RANI

Print Page

When mother will be preferred for grant of custody of child?

Even if the child is living with the father, the father and
the family members of the father should tell the child to love and
respect the mother. Just because the husband and wife are
fighting does not mean that the child should be taught to hate her
mother. A child who is taught to hate her mother can never turn
out to be a good human being. In any society the most important
trait of any person, be that person howsoever high or howsoever
low, is that the person should be a good human being.

The most important aspect is that the best interest of
the child has to be kept in mind while passing any order with
regard to custody, visitation rights etc. Legally speaking when the
child is a female and only 5 years of age the mother has the legal

right to get the custody of the child.

THE HIGH COURT OF TRIPURA
AGARTALA
Crl. Petn. No.09 of 2015
Smt. Sreeparna Banik (Saha),
- Vs. –

Sri Ankur Saha,

BEFORE
HON’BLE THE CHIEF JUSTICE MR. DEEPAK GUPTA
Citation: AIR 2016 (NOC)541 TRI

Print Page

Whether Muslim father can be given visitation rights to meet his children below seven years?

  We are of the considered opinion that the impugned

directions issued granting limited visitation rights to the father

during holidays is only in the welfare of the child and that the

paramount consideration that has to weigh with the appellate court

as well as the Family Court, is the welfare of child in a case like the

instant one. The welfare of the child demands that he should get

not only the love and affection of the mother but also that he should

have the opportunity to meet and interact with his father during

limited periods of holidays so that he also enjoys the care and love


of the father. Otherwise, the growth of the child, who is now aged

only hardly four years old (born on 25.12.2009) will not get a well

balanced and harmonious exposure to the love and care of both his

father and mother. Merely because the personal law gives custody

of the minor son until he completes the age of 7 years in favour of

the mother, does not lead to a situation of complete obliteration of

the necessity of the child to get interaction and exposure with his

father and it cannot be interpreted that the provision of       the

Mohammedan Law should be hyper technically interpreted and

enforced leading to a situation whereby it is in derogation and

flagrant violation of the aspect, which demands that the paramount

consideration should be the welfare of the minor child. As clearly

held in Mumtaz Begum v. Mubarak Hussain reported in AIR 1986

M.P. 221 that even if the mother must have custody of the child of

the tender age, until the age of 7 years, the father must not be

denied access to the child. Accordingly, we are of the considered

opinion that the court below has not committed any illegality in

issuing the impugned direction in the impugned judgment that the

father should be given limited visitation rights and consequential

interim custody of the minor boy during Onam, X'mas and Summer.
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                                 PRESENT:

                           MR.JUSTICE V.K.MOHANAN
                                                        &
                      MR. JUSTICE ALEXANDER THOMAS

            THURSDAY, THE 6TH DAY OF NOVEMBER 2014
                                        Mat.Appeal.No. 517 of 2014
                                          ------------------------------

                       OP(G&W) NO.2192/2013 OF FAMILY COURT, ATTINGAL.
                                               
            BUSHARA, AGED 26 YEAR


    Citation;AIR 2015  kerala 21

Print Page

What is distinction between visitation rights and custody right of one spouse over minor child?

By Judgment dated 02/08/2014, passed by this Court (Coram F. M. Reis, J.), in Writ Petition No. 79 of 2014, it was ordered that custody of the child would continue with the petitioner therein i.e. the petitioner herein, but the respondent being the mother would definitely have frequent visitation rights of minor child, which shall tentatively be for at least three days in a week. "Frequent" means occurring often or in close succession. Frequent cannot mean continuous.

The learned trial Court, however, by impugned order has fixed Saturday, Sunday and Monday of every week as the days for visitation of child by respondent but has further directed that the child shall be brought in the Court on every Saturday at 9.30 a.m. and handed over to the respondent, to remain with her till Monday and that she shall return the child in the court every Monday at 5.00 p.m. to the petitioner. The above means that the respondent is not allowed to visit the child as per the order of this Court but the child has been ordered to be handed over to the respondent to remain exclusively with her for three days between 9.30 a.m. of every Saturday to 5.00. p.m. of every Monday. Thus, though this Court by order dated 02/08/2014 ordered that the custody of child shall continue with the petitioner, however, on account of the impugned order, the custody of the child would remain with the petitioner only from 5.00 p.m. of every Monday till 4.00 p.m. of every Saturday, i.e. for four days.

 In other words, contrary to the order dated 02/08/2014 passed by this Court in Writ Petition No. 79 of 2014, and overreaching the said order, the impugned order has been made by the trial Court for sharing custody of child between respondent and petitioner i.e. three days custody to the respondent and four days custody to the petitioner. This is clearly illegal and hence impugned order dated 06/09/2014, warrants interference.

In terms of Black's Law Dictionary, Tenth Edition, visitation means a non-custodial parent's period of access to a child. visitation right means a non-custodial parent's or grandparent's Court ordered privilege of spending time with a child or grand child who is living with another person, usually the custodial parent. A visitation order means an order establishing the visiting times for a non-custodial parent with his or her children. Although the non-custodial parent is responsible for the care of the child during visits, visitation differs from custody because non-custodial parent and child do not live together as a family unit.

IN THE HIGH COURT OF BOMBAY AT GOA

Writ Petition No. 576 of 2014

Decided On: 18.09.2014

Appellants: Arun Sharma Vs.

Roxann Sharma

Hon'ble Judges/Coram:
U.V. Bakre, J.
Citation;2015(2) ALLMR978 SC

Print Page