'A Parent Cannot Be A Guest In The Life Of Their Child': Telangana High Court Insists On Granting Overnight Custody To Each Parent

The Court further stated that "overnight custody" must be encouraged wherever possible. It observed,

"mere meeting and spending time with the parent for couple of hours in court premises, hotel, theatre, Mall, park etc., under the supervision of other parent or relative will not serve any purpose of visitation as the child will be under psychological pressure and will not be comfortable."

The remarks were made by a Bench of Justice T. Amarnath Goud, in a contempt case, filed against violation of a custody order passed by the Family Court.

In this case, the petitioner-husband and respondent-wife had a child named Agastya. The two were no longer in marital relationship and were contesting the custody of their child. Vide order dated December 13, 2019, the Family Court had ordered:

"Custody of the child shall be with the father and mother as follows:

(i) Sunday evening 4.00 PM onwards till Friday morning, the father will have the custody of the child,

(ii) The mother will pick up the child from the school on Friday and will hand over the custody of the child to the father post lunch on Sunday at 4.00 PM.

This arrangement shall be for first three weeks in every month and for the remaining weeks, father shall have the custody of the child in order to spend time with the child in the last week ends.

(iii) From January, 2020 onwards, in all vacations, child custody shall be shared equally by both parents;

(iv) If mutually agreed, both the parties are at liberty to take the child together to any place of his choice during vacation or on any other day.

This arrangement is made in view of the child being away from the father for almost a year and for the past two years, he was given custody for only 43 days.

This arrangement is made till the end of summer vacation. Thereafter, the parents are at liberty to take appropriate steps before the Family Court in the event of any modification of having the custody of the child."

The present petition was filed by the father, before the Telangana High Court, claiming that the respondent had violated clause (iii) of the abovementioned order. He also claimed that the respondent had been taking inappropriate photographs of their child by taking the child to the Nilofer Hospital at midnight and getting the child's private parts tested for COVID-19 and in doing so, had grossly violated COVID-19 norms.

The plea further stated that the respondent had filed complaints before different police stations alleging that the petitioner had been committing immoral acts against the child, which amounts to serious offences under the law. But, after the police had conducted their investigation, these complaints turned out to be false.

Advocate Nagesh Reddy, counsel for the petitioner, further stated in the plea that the respondent has given the child, who is 6 years old, a mobile phone and is teaching him to send her certain messages in secret, with an intention to implicate the petitioner and his family. The child had done this innocently, without knowing the consequences of his action.

In response to these claims made by the petitioner, the respondent denied that she had taken these steps and refused to return the child into the custody of the petitioner in his own interest as she was concerned that the petitioner might commit homosexual acts upon him. The respondent, while defending her actions, also stated that she took the child to the hospital and also made audio and video recordings and his private parts were photographed only in the interest of the child.

The Court in this case, made certain observations. They firstly examined the child's movements and concluded that the child is not fearful of the petitioner. The respondent had told the Court that the reason why she had not allowed the child back into the petitioner's custody was because she thought that the petitioner's careless actions would result in the child contracting COVID-19. But, in this context, the Court opined,

"It is further strange to accept the behaviour of the mother that on one hand she takes shelter of Corona virus for not sending the child to his father but on the other hand she took the child to police stations, hospital for examining his private parts and made serious allegations against the father that he has committed sexual assault upon the child."

They further stated, "It is surprising to believe the version of the mother that on one hand she says that she is having more concern towards the welfare of the child and trying to keep away the child from the father and on the other hand and she is willing to continue the sharing of the child custody. Both pleas are contradictory to each other and her stand is inconsistent."

The Court opined, "A parent cannot be a guest in the life of their child. If visitation rights only are granted for limited hours, it may not be sufficient for the child to have comfortable time with the father or mother, whoever may be the case. The wider the gap, the bonds get broken quicker and the child is left confused and ends up believing this."

The Court found the respondent guilty of contempt. However, since she had expressed her unconditional apology and prayed for pardon, the Court took a lenient stand against her.

The Court also issued the following directions to the respondent and the petitioner about the shared custody of their child:

(i) To win over each other, the parents shall not use the child as a pawn against each other.

(ii) The parents should not poison the mind of the child. The child shall not be given mobile phone. He can use the mobile phone only under parental guidance.

(iii) Both mother and father shall have the custody of the child during vacation equally. During vacations if the mother and the child intend to go on domestic or international trip, the father shall make their travel and stay arrangements and bear with all such expenses.

(iv) The parties are strictly prohibited from taking obscene photos or videos of the child as well as audio recordings. All the existing photos, CDs and videos should be destroyed and they shall not be used hereafter.

Click Here To Download Order

Read Order