Parent Who Is Denied Custody Shall Have Right To Talk To Child Everyday: SC [Read Judgment]

The Supreme Court has observed that a parent who is denied custody of the child should have the right to talk to his/her child for 5-10 minutes everyday.

The bench comprising Justice Deepak Gupta and Justice Aniruddha Bose observed that the courts dealing with the custody matters must while deciding issues of custody clearly define the nature, manner and specifics of the visitation rights.

The Court was considering an appeal filed by a wife who was directed by the High Court (in a Habeas Corpus Petition filed by Husband) to return to the USA along with her minor daughter to enable the jurisdictional court in USA to pass further orders in this regard in the proceedings already pending.

Habeas Corpus Writ Maintainable Even If Child Is In Custody Of Another Parent.

One of the contention raised in an appeal filed by a wife which impugned the High Court order was that the writ petition was not maintainable. In this regard, the bench observed:

It is too late in the day to urge that a writ of habeas corpus is not maintainable if the child is in the custody of another parent. The law in this regard has developed a lot over a period of time but now it is a settled position that the court can invoke its extraordinary writ jurisdiction for the best interest of the child.

No court can force the wife to stay at a place where she does not want to stay

In this case, the High Court had directed the the wife to return to the USA along with her minor daughter within a period of 6 weeks to enable the jurisdictional court in USA to pass further orders in this regard in the proceedings already pending. Disapproving such a directive, the bench said:

" The wife is an adult and no court can force her to stay at a place where she does not want to stay. Custody of a child is a different issue, but even while deciding the issue of custody of a child, we are clearly of the view that no direction can be issued to the adult spouse to go and live with the other strained spouse in writ jurisdiction."

Doctrine of comity of courts is a very healthy doctrine

It also observed that the doctrine of comity of courts is a very healthy doctrine. It said:

" If courts in different jurisdictions do not respect the orders passed by each other it will lead to contradictory orders being passed in different jurisdictions. No hard and fast guidelines can be laid down in this regard and each case has to be decided on its own facts. We may however again reiterate that the welfare of the child will always remain the paramount consideration"

Visitation Rights And Contact Rights

The bench observed that while deciding matters of custody of a child, primary and paramount consideration is welfare of the child. It said.

"A child, especially a child of tender years requires the love, affection, company, protection of both parents. This is not only the requirement of the child but is his/her basic human right. Just because the parents are at war with each other, does not mean that the child should be denied the care, affection, love or protection of any one of the two parents. A child is not an inanimate object which can be tossed from one parent to the other. Every separation, every re-union may have a traumatic and psychosomatic impact on the child. Therefore, it is to be ensured that the court weighs each and every circumstance very carefully before deciding how and in what manner the custody of the child should be shared between both the parents. 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. It is only in extreme circumstances that one parent should be denied contact with the child. Reasons must be assigned if one parent is to be denied any visitation rights or contact with the child. Courts dealing with the custody matters must while deciding issues of custody clearly define the nature, manner and specifics of the visitation rights.

Concept of Contact Rights

The Court added that, in addition to 'Visitation Rights', 'Contact rights' are also important for development of the child specially in cases where both parents live in different states or countries.

"The concept of contact rights in the modern age would be contact by telephone, e-mail or in fact, we feel the best system of contact, if available between the parties should be video calling. With the increasing availability of internet, video calling is now very common and courts dealing with the issue of custody of children must ensure that the parent who is denied custody of the child should be able to talk to her/his child as often as possible. 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 everyday. 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 we cannot provide one happy home with two parents to the child then let the child have the benefit of two happy homes with one parent each." 

The bench disposed of the appeal by issuing certain directives.

Case name: YASHITA SAHU vs. STATE OF RAJASTHAN
Case no.: CRIMINAL APPEAL NO.  127 OF 2020 
Coram: Justice Deepak Gupta and Justice Aniruddha Bose 
Counsel: Adv Malvika Rajkotia for Appellant and Adv Prabhjit Jauhar for Respondent

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