Orissa High Court Sets Aside Family Court Order Denying Visitation Rights To Father Pending Custody Battle, Orders Fresh Consideration

The Orissa High Court has recently set aside an order passed by a Family Court whereby the biological father was denied visitation rights to meet his son while the custody case is pending for consideration.A Single Bench of Justice Sanjay Kumar Mishra gave much emphasis to the visitation rights of parents and underlined that such rights should be determined keeping in view the best interest of the child. In the words of the Court –“Since visitation right is an important right of either of the parents to see the children born out of their wedlock and while deciding the welfare of the child, it is not the view of one spouse alone, which has to be taken into consideration, this Court is of the view that the Court is required to decide the issue of visitation on the basis of what is in the best interest of the child.”The petitioner-husband and the opposite party-wife got married in 2011, out of whose wedlock two children were born. After some years of conjugal relationship, they decided to part ways owing to their temperamental incompatability. The wife managed to get an ex parte decree of divorce against the husband and remarried an elderly person, who was in his 50's. As per mutual agreement, they decided to keep their daughter in the custody of the wife and the son was to stay with the husband. Both of them allowed each other the visitation rights to meet their children. However, in early 2024, the wife took away the son from his school on the pretext of his illness and never allowed him to return to his father.Therefore, the petitioner filed an application under Section 6 of the Hindu Minority and Guardianship Act seeking custody of his son. Alongside such application, he also filed an interim application seeking communication/visitation rights, pending the custody battle. The Family Court, however, did not allow such application citing the absence of suitable neutral venue and apprehension of 'untoward incidents'. Impugning such order, the petitioner-husband filed this writ petition.After giving thorough hearing to the parties, the Court noted that by an order dated 16.05.2025, as an interim measure, it had permitted the petitioner to make calls/WhatsApp calls once in a day to his son. Nevertheless, the petitioner filed an affidavit stating that he could communicate with his son for merely ten days, after which the said arrangement ceased to be operational due to constant tutoring of the opposite party-wife.The Court had then asked both the parties to remain present on 12.08.2025 along with their minor son for in-chamber hearing/conversation. Justice Mishra noted that at the time of interaction, the minor boy gave impression of being terrified by his father/the petitioner and addressed him as 'uncle'. Surprisingly, he also took the name of the second husband of the opposite party as his father. The Court believed such answers to be an outcome of tutoring by the wife. Accordingly, it observed –“On a prima facie consideration, admitted facts on record, including the Counsellor's Report, so also the admitted fact that the Petitioner has kept himself away from remarriage so also custody of both the children is at present with their mother, who is married to an elderly person, who is already having three children, this Court is of the view that the refusal of visitation right to the natural father by the learned Judge, Family Court, Cuttack vide the impugned order appears to be unjust and contrary to the settled position of law.”Further, having regard for the law laid down by the Supreme Court in Yashita Sahu v. State of Rajasthan (2020) and by the High Court in Manjusha Singhania v. Nimish Singhania, 2025 LiveLaw (Ori) 74, the Bench reiterated that children are not inanimate objects who can be tossed from one parent to the other. It also emphasized that visitation right being an important right of a parent, the same should only be decided keeping in view the welfare of the child.As a result, the impugned order was found to be faulty and was accordingly set aside. The matter was remitted back to the Family Court for fresh consideration in consultation with the parties and their Advocates in order to decide the place, frequency and time of visit. The Court below was also directed to put appropriate condition enabling the petitioner to be in touch with the son telephonically or through WhatsApp communication during pendency of the custody adjudication.Case Title: Sanjay Sharma v. Dolly @ Sakhi Sharma & Anr.Case No: W.P.(C) No. 10091 of 2025Date of Judgment: October 10, 2025Counsel for the Petitioner: Mrs. Suman Modi, AdvocateCounsel for the Opposite Party: Mr. Kirtan Dang, AdvocateCitation: 2025 LiveLaw (Ori) 137Click Here To Read/Download Order

Orissa High Court Sets Aside Family Court Order Denying Visitation Rights To Father Pending Custody Battle, Orders Fresh Consideration

Jyoti Prakash Dutta

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