Claims of parents subservient to the interest of the child: HC stays order granting father daily visitation rights

 

 

The Delhi High Court recently comprising of a bench of Justice Yashwant Varma stayed a Family Court's order granting visitation rights to the putative father of a 2½ years old child on a daily basis. (Kinri Dhir v. Veer Singh)

Facts of the Case

The petitioner wife had moved the High Court to set aside an order passed by Principal Judge Madhu Jain of the Family Court at South-East District, Saket. The lower court had partially allowed an application filed under Section 12 of the Guardian and Wards Act by the respondent father, allowing him daily visitation rights from 6 to 8 PM.

The petitioner before the Family Court argued that since the respondent-father has denied the marriage, therefore the child is illegitimate and according to Section 6 of the Hindu Minority and Guardianship Act, 1956 he is not entitled for the custody of the child and therefore, visitation rights also cannot be granted to the respondent.

Contention Of the Parties

The petitioner-mother While denying the fact that both the Petitioner and the Respondent were living in the same building argued that Respondent is not residing there since many months and is now taking the 2 year old outside to various unknown and undisclosed locations on the strength of the Impugned Order which is creating havoc on the schedule of the minor child.

She further submitted that a putative father is not akin to a biological father under the Hindu Minority and Guardianship Act, 1956 and that the routine of the mother and the child cannot be subjected to such a strict, onerous and unreasonable regime.

The respondent on the other hand admitted the birth of the child, though he stated that no valid marriage between him and the petitioner took place. Thus, he had not denied the paternity of the child and had admitted in the application that the child belongs to him.

Courts Observation & Judgment

The bench noted, “for the purposes of considering the prayer for interim relief, the Court notes that the proceedings before the Principal Judge were not based on any allegation of the mother failing to discharge her obligations or adequately caring for the needs and welfare of the minor child. The Court also bears in mind the fact that the minor child in question is merely 2½ years old. Prima facie and as this Court goes through the order passed by the Principal Judge, it is apparent that the court proceeded on the incorrect path of seeking to consider and evaluate the competing rights of parents to be accorded custody and/or granted rights of visitation. The above claims which are raised by competing parents must necessarily be recognized as being subservient to the interest of the child which has always and consistently been recognized as being paramount.”

The bench observed, "The order ultimately passed requires the minor child of 2½ years to be moved out of the residence and be taken by the respondent for a period of 2 hours on a daily basis. The Principal Judge has clearly failed to weigh or consider the disruptive and deleterious impact that this may have."

The bench of the high court stating that the matter requires consideration listed the case for hearing on January 7, 2022. The bench ordered, "Till the next date of hearing, there shall be stay of the order dated 28th October, 2021."

Read Judgment  

 

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(With input from news agency language)

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