Parent Losing Child's Custody Should Be Given Sufficient Visitation Rights To Ensure Social, Psychological Contact With Child: Karnataka High Court

The Karnataka High Court has directed a woman to comply with the settlement arrived at with her husband in regard to guardianship, custody and visitation rights of their minor son.

A division bench of Justice Alok Aradhe and Justice Anant Ramanath Hegde disposed of a habeas corpus petition filed by the father to produce the minor son and directed the mother to handover the custody of the son to the petitioner during the summer vacation, as per their settlement.

It observed,

“The concept of guardianship of a ward is essentially different from custody of the ward. The Court has to ensure that sufficient visitation rights to a parent who is not given child's custody should be granted so that the child may not lose social, physical and psychological contact with the parent. The parent who is denied the custody of the child should have access to the child specially when both parents live in the same city.”

The Court also directed the father to be on leave from work during custody period and spend the whole time with the son. The child's grandmother and aunty will also stay with him during this period, Court said.

The couple had married in the year 2011 and on account of matrimonial disputes, the parties did not stay together beyond 2014. Later, the wife initiated a proceeding under Section 125 CrPC seeking maintenance for herself and the son. The husband challenged the same in the high court, where the parties arrived at an amicable settlement. Admittedly, under the aforesaid compromise, the wife was appointed as guardian of son whereas petitioner-father was granted visitation rights during weekends as well as custody of child during summer and winter vacations.

Petitioner alleged that during one of the weekends in the month of January 2023 the petitioner was denied access to the child and despite commencement of summer vacations, the custody of the son was not handed over to him as per the terms of the compromise.

The wife contested the plea on the grounds that the petitioner has not placed on record the leave grant certificate and no leave has been granted to him. Further, the instant case is not a case of illegal detention as the son is in the custody of the mother and in case the terms and conditions of the compromise arrived at between the parties have been breached, the petitioner is at liberty to initiate the proceedings for contempt of this Court, it was argued.

Findings:

Firstly, the court held the petition to be maintainable. It relied on the case of Yashita Sahu Vs State of Rajasthan, wherein the Supreme Court held in case the child is in custody of one of the parents, a writ of Habeas Corpus is maintainable.

Moving forward, the Court noted that the petitioner-father and respondent-wife had entered into a compromise as per which the petitioner is entitled to visit their son during weekends and is entitled to his custody during summer as well as winter vacations. "In the instant case, admittedly the petitioner has been deprived access to the son during the Summer Vacation. Therefore, in the factual situation of the case, the writ of Habeas Corpus is held to be maintainable.”

The bench interacted with the child and noted that he likes his grandmother. Following which the bench said “Therefore, during his stay with the petitioner, it is all the more necessary that a congenial atmosphere remains in the house of the petitioner where the son can feel comfortable...The parents are under an obligation to provide for an environment which is reasonably conducive to the development of the child. It is in the best interest of the child to have parental care of both the parents if not joint then at least separate.”

Accordingly, it held there is no reason as to why respondent-wife should be permitted to flout the terms and conditions of the compromise.

Case Title: ABC And XYZ

Case No: W.P.H.C. NO.34 OF 2023

Citation: 2023 LiveLaw (Kar) 182

Date of Order: 23-05-2023

Appearance: Advocate K.B Monesh Kumar for Vijetha R Naik for petitioner.

Advocate R.A.Devanand for advocate Shashidhar Belagumba, For R4.

HCGP Thejesh P for R 1 to R3

Click Here To Read/Download Order