IMPORTANT POINT
Custody of child – Interest of minor child is paramount – In the process of adjudicating upon rights of parents, her health cannot be compromised.

JUDGMENT :

VIKRAM NATH, J.

1. Leave granted.

2. The present appeal arising from the Special Leave Petition No. 18240 of 2024 challenges the validity of the judgment dated 21.03.2024 passed by the Madras High Court’s Madurai Bench in C.M.A. (MD) No. 118 of 2024. The High Court, through the impugned order, has dismissed the appellant–mother’s miscellaneous appeal and upheld the interim visitation rights granted to the respondent–father and modified the directions passed by the Family Court.

3. Facts giving rise to the present appeal are that the parties herein got married on 09.09.2021 and a daughter was born to them on 06.06.2022. Shortly after birth of the child, in June 2023, the appellant filed a petition for dissolution of marriage under Section 13(1)(ia) of the Hindu Marriage Act, 1955¹[In short, the “HMA”], on the ground of cruelty. Appellant in her petition contended that the respondent had continuously been committing domestic violence on her as well as the child. He had deserted them on 01.07.2022, and when he returned later, he attempted to kill them on 16.08.2022. She has also asserted that he would also beat up the child for absolutely no reason. She further submitted that the parties have been living separately since 18.08.2022.

4. Respondent in October 2023, had preferred an application under Section 26 of the HMA in the divorce proceedings, seeking visitation rights during the pendency of the proceedings. The Family Court allowed the respondent’s application and in its order dated 10.11.2023 directed that the appellant should take the child to Karur, Tamil Nadu, every Sunday in the morning from 10:00 hours to 12:00 hours, and hand over the child to the respondent in the campus of the Kalyana Pasupatheswarar Temple, Karur.

5. Appellant approached the High Court against the above judgment of the Family Court on the ground that she is now residing in Madurai and the distance between Madurai and Karur is 150 kilometers, and thus the long travel of 300 kilometers every Sunday would be adversarial to the health of the child. Further, she has also contended that there is continuous death threat to the life of the appellant and the child; the respondent has never taken care of the child, the child has never been in his company, and thus, respondent is effectively a stranger for the child. Therefore, such visits would only be a source of mental agony to her.

6. The High Court, while dismissing the miscellaneous appeal filed by the appellant, observed that since the father is also the natural guardian of the child, he is also entitled to have the custody of the child. The High Court made attempts at uniting the parties in the interest of the child, but the reconciliation attempts have failed. Thus, the High Court while noting its disappointment towards the failed attempts at reconciliation, observed that the agony of missing the early childhood of one’s offspring cannot be prolonged for any of the parties. Thus, the High Court modified the directions of the Family Court and directed the appellant to take the child to Karur on every Sunday and hand over to the respondent between 10:00 AM to 02.00 PM, at the place mentioned in the application before the Court below or any other place in Karur which is convenient due to the summer condition, taking into consideration the tender age of the child, for a period of two months and thereafter, hand over the child for alternative weekends till the Guardian Wards Original Petition is decided.

7. The appellant is before us challenging the above judgment of the High Court on the ground that this set up envisages a travel of about 300 kilometers, to and from Karur, every Sunday, causing great difficulty and hardship to the minor child. She has further submitted that the respondent is a stranger to the child. It is natural that a minor child of such tender age i.e., two years will get extremely uncomfortable from the presence of the respondent. That the daughter was born on 06.06.2022 and the pa