Visitation rights of a parent cannot be made contingent upon the payment of maintenance, as these are distinct legal issues that must be evaluated independently, ensuring the best interests of the children are prioritized.

JUDGMENT

1. The petitioner is before this Court calling in question order dtd. 4/11/2019 passed on I.A.No.VI in G & WC No.4 of 2019 by the I Additional Principal Judge, Family Court, D.K., Mangalore insofar as it makes payment of maintenance a condition precedent to the petitioner's visitation/interim custody of children.

2. Heard Sri Arun Govindraj, learned counsel appearing for the petitioner and Sri M.N. Nehru, learned counsel appearing for the respondent.

3. Brief facts that lead the petitioner to this Court in the subject petition, as borne out from the pleadings, are as follows:- The petitioner is the husband and respondent is his wife. Marriage between the two takes place on 24/11/2003 at Kollur. From and out of the wedlock the couple have two children - a son born on 11/6/2008 and a daughter born on 3/6/2009. The marriage between the two began to flounder which led to execution of a settlement agreement styled as a separation agreement between the two and their respective fathers laying certain conditions with regard to separation, custody, visitation and maintenance.

4. The respondent on the allegation that the husband has not paid maintenance in terms of separation agreement instituted proceedings before the concerned Court in M.C.No.56 of 2019 seeking dissolution of marriage between the parties. After registration of the case for divorce the husband initiates proceedings under the Guardians and Wards Act, 1890 ('the Act' for short) in G & WC No.4 of 2019 seeking him to be appointed as the sole guardian of minor children and further prayed permanent custody of his minor children. In the said proceedings, the petitioner files an application under Sec. 12 of the Act praying that an order be passed permitting him to exercise his custody and visitation rights over minor children.

5. The concerned Court, in terms of its order dated 04-11- 2019, noticing the fact that the petitioner had not paid maintenance to the respondent from November 2018 as agreed in the separation agreement, passed an order that visitation or custody of minor children as claimed by the petitioner would be subject to the condition that he would pay maintenance. It is against this order the petitioner has preferred the subject petition. The said order was passed on 4/11/2019 and the writ petition comes to be filed on 14/11/2022, 3 years and 20 days after passing of the impugned order.

6. The learned counsel appearing for the petitioner submits that the concerned Court could not have made visitation and custody subject to payment of maintenance as it is a separate cause of action altogether to be agitated by the wife. The learned counsel would submit that the Court ought to have restricted its finding only to the issue of visitation and custody. He would contend that the wife has breached separation agreement on several occasions and, therefore, the petitioner was constrained to deny maintenance. Therefore, fault lies on both sides. He would submit that the petitioner is ready and willing to pay maintenance, as also education expenses of the children. It is his submission that the wife has deliberately shifted the children from the school they were studying to an expensive residential school at Ooty only to harass the petitioner. Therefore, the petitioner is not in a position to arrange that much of money for the education of the children and it was also not agreed between the parties that the children would study in a residential school at Ooty.

7. On the other hand, the learned counsel representing the respondent/wife would refute the submissions to contend that the petitioner after drawal of separation agreement disappeared for six months and did not pay any maintenance. Therefore, the wife was constrained to file a case seeking dissolution of marriage before the concerned Court. Immediately thereafter, as a counter-blast, the petitioner files a petition before the concerned Court seeking custody and right of visitation. The wife would submit that sh