"Child's Father Entitled To Visitation Rights": Allahabad HC Disposes Habeas Plea Allowing Man To Meet His Child Living With Mother

Allowing a Habeas Corpus plea filed by a father seeking visitation rights to meet his son presently living with his mother, the Allahabad High Court has observed the father is ENTITLED to visitation rights to meet his child.

Essentially, the child is presently living with his mother pursuant to a mutual agreement made between the husband and wife in a divorce suit decided on the basis of mutual consent. In the agreement, it was agreed the corpus/child will reside with his mother. However, the man/father moved to the Court alleging that he wasn't being allowed to meet the child.

Against this backdrop, taking into account the decision of the Apex Court in the case of Yashita Sahu v. State of Rajasthan & Ors. 2020 (3) SCC 67, the Bench of Justice Anil Kumar Ojha observed that since the child was admittedly born out of wedlock of petitioner, Abhinay Jain and Respondent No. 2, Smt. Megha Jain, therefore, the petitioner, being the father of the corpus is entitled to visitation rights.

It may be noted that in Yashita Sahu (supra) case, the Supreme Court had rejected the contention that a writ of habeas corpus was not maintainable if the child is in the custody of another parent and held that the court can invoke its extraordinary writ jurisdiction for the best interest of the child.

Keeping in view the above facts and circumstances of the case, the Court gave visitation rights to the petitioner as follows:

(1) Petitioner is granted visitation rights to meet his son once every month, on the first Sunday of the beginning month for two hours from 11:00 AM to 01:00 PM at the residence of Respondent No. 2/mother

(2) Petitioner is also granted visitation rights to meet his son i.e. Respondent No. 3 on the festival of Holi and Diwali, just the preceding day of the festival for two hours at the residence of Respondent No. 2./wife

(3) Petitioner and Respondent No. 2/wife shall not create any disturbance in any manner at the residence of Respondent No. 2/wife.

With the above directions, the Habeas Corpus Writ Petition was disposed of.

Case title - Abhinay Jain v. State Of U.P. And 2 Others

Case citation: 2022 LiveLaw (All) 167

Click Here To Read/Download Order