‘Parents Can't Be Guest In Child's Life; Visitation Rights Shouldn't Be Limited To Few Hours, Must Encourage Overnight Custody To Each Parent': Tripura HC

The Court further opined that that a wider gap between the parents and the child weakens their bond and the child is left confused, and hence, such acts of any parent in separating a child from the other parent should be “nipped in the bud” otherwise, the Court added, the separated parent ends up becoming a “guest” in the life of the child.

The observations were made by a bench of Justice T. Amarnath Goud in a Section 482 CrPC plea filed by the father (Rakesh Chandra Saha) of a 6-year-old girl and her paternal grandparents challenging an order of the Additional Sessions Judge, Gomati Judicial District, Udaipur granting interim custody of the girl, under the power of the DV Act, in favour of her mother (wife of Saha/Petitioner no. 1).

Petitioners contended that the Court below did not feel it necessary to give the temporary custody of the child in favour of them based on the material placed before it at the time of consideration of temporary custody of the minor child.

It was also argued that the Court, in its order, failed to explain how the custody of the minor child would be better-taken care of by the mother (respondent) although she has no source of income to maintain herself and that she had left the minor child not having the slightest concern about the child.

High Court’s observations

Taking into account the facts, circumstances and evidence led by the parties, the Court, at the outset, observed that while deciding matters of custody of a child, the primary and paramount consideration is the welfare of the child, however, while deciding the welfare of the child, it is not the view of one spouse alone which has to be taken into consideration.

The Court also added that a child, especially a child of tender years, requires the love, affection, company; and protection of both parents and therefore 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.

In this regard, the Court further opined 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.

Regarding the grant of visitation rights in custody battles between parents, the Court said normally, if the parents are living in the same town or area, the spouse who has not been granted custody is given visitation rights over weekends only.

“In case, the spouses are living at a distance from each other, it may not be feasible or in the interest of the child to create impediments in the education of the child by frequent breaks and, in such cases, the visitation rights must be given over long weekends, breaks and holidays. In cases like the present one where the parents are in two different places far away from each other, effort should be made to give maximum visitation rights to the parent who is denied custody,” the Court further added as it stressed that in addition to "visitation rights", "contact rights" are also important for the development of the child.

“Unless there are special circumstances to take a different view, the parent who is denied custody of the child should have the right to talk to his/her child for 5-10 minutes every day. This will help in maintaining and improving the bond between the child and the parent who is denied custody. If that bond is maintained, the child will have no difficulty in moving from one home to another during vacations or holidays. The purpose of this is, if one happy home with two parents cannot be provided to the child then let the child have the benefit of two happy homes with one parent each,” the Court observed.

About the custody battles between the parents, the Court said that in such cases, the innocent child is the ultimate sufferer who gets caught up in the legal and psychological battle between the parents.

Given this, the Court emphasized that while all other factors are undoubtedly relevant, it is the desire, interest and welfare of the minor which is the crucial and ultimate consideration that must guide the determination required to be made by the Court.

Observing thus, turning to the facts of the case, the Court disposed of the petition by modifying the lower court’s order, by granting custody of the child to both the parents in view of the following directions:

• Monday, Thursday and Friday will be with the father since the child is attending school including night stay
• Saturday after school and Sunday, the custody will be with the mother since the mother is staying at Agartala at her parental home. The mother will pick up the child and drop at the residence of the petitioner without affecting the school timings
• On all holidays they share their time equally and on vacation also to be shared equally by both parents
• On the birthday of the child, morning to evening 4.00 O’clock the child will be with one parent and after 4.00 O’clock the child will celebrate her birthday with the other parent. In the event, if both parents wish to celebrate the birthday of the child together at a time and at a place as per her wish, they are at liberty to do so. The father shall bear the education and medical expenses of the child and shall take care

“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 a couple of hours to see the child in an alone place as a guest visitor,” the Court stressed as it parted with the matter.

Case title – RCS vs. PDS

Case Citation:

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