Delhi High Court Upholds Right Of Putative Father To Visit Minor Child

The Delhi High Court has observed that a putative father is entitled to visitation rights and that a minor child must not be insulated from parental touch and influence of other parent for his personal growth and development.

"It cannot be disputed that the respondent, being a putative father shall be entitled to visitation rights. While determining and granting such rights, more so when the child is of less than three years of age, surely his well-being / welfare is of paramount importance. At the same time, the minor must not be insulated from parental touch [Ref: Ruchi Majoo (supra)] and influence of the other parent for healthy growth of child and development of his personality," the Court said. 

Noting that the tender age of the minor child, who was less than three years old, Justice V Kameswar Rao modified the impugned order dated October 28, 2021 passed by the Family Court which had granted visitation rights of the minor child to the putative father for two hours every day.

The Court modified the order and directed that instead of daily, the respondent putative father shall have visitation rights on alternate weekdays being three days in a week.

It was the case of the petitioner mother that the Trial Court had erred in partially allowing the putative father's application filed under sec. 12 of the Guardian and Wards Act, 1890 read with sec. 6(a) and 6(b) of the Hindu Minority and Guardianship Act, 1956 read with sec. 151, of CPC.

It was the stand of the petitioner that the respondent, who is the father of the minor child had admitted himself to be a putative father.

The visitation rights being from 6 PM to 8 PM every day were granted on two major grounds i.e., (i) respondent had admitted the paternity of the minor child and; (ii) respondent was residing in the same premises as the minor child and the petitioner albeit on a different floor.

On these grounds, the Trial Court proceeded to grant visitation rights however, the petitioner claimed that the same were misconceived and based on the misrepresentations of the respondent.

Therefore, the issue before the Court was whether the Family Court was justified in allowing the visitation rights of respondent for having access to the minor child for two hours per day.

While it was the case of the petitioner mother that the respondent being a putative father was not entitled to visitation or custody unlike biological father, the counsel appearing for the respondent argued that the paternity of the minor child had never been disputed inasmuch as it is the stand of the respondent before the Family Court that he was the biological father of the minor child.

Earlier, Justice Rekha Palli had stayed the impugned order granting visitation rights to the putative father.  

The petitioner-mother had moved the High Court arguing that Respondent was not residing there since many months and was taking the 2 year old outside to various unknown and undisclosed locations on the strength of the Impugned Order which is creating havoc on the schedule of the minor child.

She had also submitted that a putative father is not akin to a biological father under the Hindu Minority and Guardianship Act, 1956 and that the routine of the mother and the child cannot be subjected to such a strict, onerous and unreasonable regime.

Before the Family Court, the petitioner had argued that since the respondent-father has denied the marriage, therefore the child is illegitimate and according to Section 6 of the Hindu Minority and Guardianship Act, 1956 he is not entitled for the custody of the child and therefore, visitation rights also cannot be granted to the respondent.

On the other hand, the respondent putative father had admitted the birth of the child, though he stated that no valid marriage between him and the petitioner took place. Thus, he had not denied the paternity of the child and had admitted in the application that the child belongs to him.

The Court referred to the relevant judgments of the Supreme Court including in the case of Amyra Dwivedi v. Abhinav Dwivedi & Anr wherein it was held that the child has a right to love and affection of both the parents which supersedes the privilege of having access to the child of both the parents.

The Court also referred to a case delivered by a Coordinate Bench of the High Court in Pradeep Santolia & Ors. v. State & Anr wherein it was held that the child's ties with father should not be completely and perpetually stopped to ensure a healthy emotional quotient and a robust psychological growth of the child, for which the affection of both the parents would be necessary.

Therefore, modifying the impugned order, the Court directed the putative father to ensure the safety and well-being of the child and ensure that necessary COVID-19 protocols are maintained and the child is not exposed by non- essential outings to public places.

"This does not preclude the respondent from taking the child to a nearby park. The respondent shall not take the child out of the territorial limits of the Courts in Delhi," the Court added.

Senior Advocate Geeta Luthra with Advocates Shivani Luthra Lohiya, Asmita Narula, Anubhav Singh and Priyanka Prasanth appeared for Petitioner. Senior Advocate Rebecca M. John with Advocates Gauri Rishi, Manav Gupta, Srishti Juneja, Garima Sehgal, Sahil Garg, Ankit Gupta and Praavita Kashyp appeared for Respondent.

Case Title: KINRI DHIR v. VEER SINGH

Citation: 2022 LiveLaw (Del) 236

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