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How Visitation should be determined

IN THE HIGH COURT OF DELHI AT NEW DELHI

SUBJECT:CRP No.276/2003

Date of Hearing : March 15, 2004.
Date of Decision: April 12, 2004.

Hindu Marriage Act 1955 -Custody of the Minor Child

Paramjit Singh Lamba …Petitioner
through Mr. J.P. Singh, Advocate

Versus

Smt. Prabjot Kaur …Respondent
through Mr. K. Sultan Singh

with Mr. Manish Kumar, Advocates

CORAM:HON’BLE MR. JUSTICE VIKRAMAJIT SEN

1. Whether reporters of local papers may be allowed to see the Judgment? Yes

2. To be referred to the Reporter or not? Yes

3. Whether the judgment should be reported in the Digest? Yes

VIKRAMAJIT SEN, J.

1. This Revision brings to the surface an important question which universally affects and afflicts all persons belonging to a broken home, viz. the custody of the minor child of the two warring spouses. It cannot be over-emphasised that the paramount consideration in all such situations is the well-being of the child. It is this aspect which must be kept in focus and the individual `rights’ of the parents would recede into the shadows. It is but a human frailty for the Judge to be prejudiced by the reproachable and unbecoming conduct of a particular spouse while determining the manner in which the child’s time is to be apportioned. It has been noticed that the Guardian Judge does not follow a uniform practice in this regard in that sometimes the parent who does not have the custody of the child is granted a meeting of a duration of one or two hours in a month, that too in the uncomfortable and uncongenial environment of the Court, while in other cases weekly visitation or access for several hours is ordered. It is trite to state, but necessary to reiterate, that it is the welfare of the child which must be kept in the fore, either while granting custody or visitation to the parent who does not have the custody. It must also be highlighted that orders of this genre are inherently interlocutory in nature, subject to modification from time to time. It is not essential that the Court accepts consent terms presented to it by the parents. The Court is also not powerless to cancel or modify an arrangement approved by it earlier, if change in circumstances so compel.

2. The Statute proclaims the father to be the natural guardian of the child but clarifies that till he/she attains the age of five years, his/her custody would ordinarily be granted to the mother. The Legislature merely recognises the universal experience and observation that the mother is better equipped and inclined in bringing-up the children. Homo sapiens are the most advanced and intelligent species but there is some commonality with other animals amongst whom it is ubiquitously the mother which cares for the offspring upto adolescence. The Hon’ble Supreme Court, however, has clarified in Kumar V. Jahgirdar vs. Chethana Ramatheertha, 2004(1) Scale 149 that it does not subscribe to the observations that a mother is always preferable to the father so far as the custody of the child is concerned. Although the Hon’ble Supreme Court had found that the child had not been brainwashed in the case before it, it was expressly aware of the reality that the child’s mind is invariably poisoned against the other parent. Such a practice must be unreservedly deprecated, as it is wholly deleterious to the welfare of the child concerned and to the development of the personality. Every child requires exposure to and influence of both his parents. Visitation in Court precincts should be resorted to where there is no other option, or where the conduct of a parent is deviant or unnatural thereby necessitating jural monitoring.

3. In the present case the Father has for various reasons, which I need not discuss threadbare, not had much interaction with his daughter. It has been explained that he was pursuing studies in the United States of America during the infancy of his daughter. Visitation between 3:00 P.M. to 4:00 P.M. on the last Saturday of the month, in the Court precincts, appears to have been granted on 23.3.2001. The present Additional District Judge has taken an adverse view of the fact that the Father did not assail the previous Order in an Appeal or Revision. In my considered view, however, it would be inappropriate to give a critical weightage to this fact. Assuming that a parent was uncaring at a particular stage in the child’s life, he/she should not be shut out for all times to come. As already observed a decision should be taken not from the claim of the parent, but from the standpoint of the child concerned, since there can be no argument against the necessity for the child to spend time with both parents. In the present case the fixation of only one hour in a month has led to the consequence of the child refusing to meet her Father, that is, the Petitioner herein. Such an abhorrence towards the Father cannot but be the result of brainwashing by the Mother, which has succeeded in large measure because of the extremely limited access of the Petitioner with his daughter.

4. So far as the interests of the child are concerned it is imperative that a meaningful exposure to both parents should be ordained by the Court. One hour every month is clearly counter-productive for the achievement of this objective, as this case palpably manifests. The Court should endeavour to make a weekly meeting possible and only insist that this should be in the Court precincts where no other alternative is possible. It is only in rare cases that such a location should be prescribed. The duration of the meeting should be fixed so as to enable a healthy interaction between the parent and child, and should not be reduced to a mere legal formality. There is also no reason why a shorter visitation, say for one hour, should also not be ordered on a week day so that there is constant contact between the child and the parent. This may be onerous or awkward for the parent who has custody, but in a dismembered family, it cannot be avoided. The parents will eventually evolve a system and develop a pragmatic and healthy attitude where their lives continue in the smoothest manner possible even in such adverse and unfortunate circumstances.

5. In the impugned Order the Additional District Judge has understandably noted and has been adversely influenced by the fact that the application for a change in the interim arrangement and for custody of the child had been presented by the Father only on the filing of the Petition under Section 13(1) (ia) of the Hindu Marriage Act. This is also a reality, but the bluff of the parent filing such an application can be countered by allowing access/visitation rights to the child which the uninterested parent would eventually not fully avail of. In such a case the parent would run the danger not only of alienating the child forever, but also creating an occasion for modification in the duration of child access.

6. I would allow the present Revision by increasing the access of the Father to one hour every week, in the first instance. Since it is evident that the daughter is presently inimical towards meeting her Father, it is expected of the Respondent that she should create a congenial atmosphere which would obviate the meeting/visitation to be held in the Court of the Matrimonial/ Guardian Judge. If avoidable bickering does not end, the parents would end up wasting the better part of their lives in Court, and this should soon bring them to their senses. Their folly, however, is no justification for not endeavouring to achieve the best for the unfortunate child, who has no role or say in the spousal spat.

7. The place of the weekly meeting is left to the Matrimonial/ Guardian Judge to determine. As has been observed, it is for the Mother to ensure that the Daughter has a healthy interaction with her Father, lest an opinion be formed that she is deliberately turning the Daughter against her Father. If such an opinion is formed by the Court, there would be no option available to the Court but to award/transfer the custody to the Father in the hope that with the change the child would adopt a more balanced and healthy attitude towards both her parents. My faith that Counsel for the parties shall both advise and assist in bringing about some sanity in their respective clients will, I turst, not be in vain.

8. The Petition is disposed of with these observations. Parties to appear before the Additional District Judge on 21st April, 2004.

April 12, 2004
(VIKRAMAJIT SEN)
JUDGE

1 thought on “How Visitation should be determined

  1. If men are from mars, and women are from venus, family court judges must be from an outer galaxy! One hour/week of meeting time between father and daughter… oh what great way for a girl to grow up.

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