In visitation cases, the court must consider the impact of a brief temporary visit on the child's sensitivity and ensure that the child's paramount welfare is not compromised.

1. This application is primarily directed against an order, being Order No.4 dated 19th June, 2008 passed by the learned District Judge at Alipore, District - South 24-Parganas in Act VIII Case No. 87 of 2008.

2. The petitioner in the instant application is the adoptive father of a nine-year-old girl child, named Devdatta. The opposite party is the adoptive mother.

3. The impugned order passed by the learned Court below emanates from an application filed by the petitioner father on 17th June, 2008 inter alia praying for access. By the order impugned, the learned Court below granted the adoptive father visitation right to see Devdatta at her adoptive mother's place on every alternate day in-between 8-00 a.m. to 8-00 p.m., barring the school hours of the minor Devdatta, for a period of two hours till further order. It transpires from a plain reading of the impugned order that so far as access given to the father to visit Devdatta is concerned, the same was agreed upon by the learned Advocates representing both the parties before the learned Court below. It, however, appears that a dispute arose as to the place of visitation. Taking into consideration of the submissions made by the learned Advocates on behalf of the parties and keeping in mind the interest of the child, the learned Court below gave such direction as indicated above.

4. Against this order of the learned Court below granting visitation right to the adoptive father to see the child, Devdatta, at her adoptive mother's place, the petitioner-father approached this Court by filing the instant application invoking its jurisdiction under Article 227 of the Constitution of India.

5. Before dealing with the merits and contentions of the respective parties so far as it relates to the order impugned, it needs to be placed on record that at the very outset this Court tried its best to resolve the issues and differences by calling the parties to appear in-person in chamber and also by giving certain directions in a earlier order dated 10th September, 2008 in order to enable the child, Devdatta, to enjoy her birthday in the presence of her family members, which fell on 14th September, 2008. It further appears that the parties to the instant proceeding, although well-educated adults, have not been able to resolve their differences even for the sake of their adopted child, Devdatta. It is in this unfortunate factual backdrop that this Court is constrained to take up and dispose of the instant application, strictly on its own merit.

3. As stated hereinbefore, the order impugned emanates from an application filed before the learned Court below by the petitioner-father sometime in June, 2008, praying for access. Before the learned Court below the dispute with regard to the place of visitation was resolved by the learned Judge by passing such direction, as has been stated above.

7. Learned Counsel appearing on behalf of the petitioner, after placing the facts of the instant case, relies on several judgements of the Hon'ble Supreme Court and a judgement of a learned Single Bench of Delhi High Court and submits that the principles of law applicable in the case of custody of a child shall also govern in the case of visitation or access.

8. He further submits that whenever a question arises before a Court pertaining to the custody of a minor child, the matter is to be decided not on considerations of the respective legal rights of the parties, but on the sole and predominant criterion of what would best serve the interest and welfare of the child. He submits that in the facts and circumstances of the instant case the best interest and welfare of the child, Devdatta, would be served not only by granting visitation right to his client and the paternal grandparents, but also custody. He relies on the judgement of the Hon'ble Supreme Court in the case of Elizabeth Dinshaw vs. Arvand M. Dinshaw & Anr., reported in AIR 1987 SC 3. Relying on the decision rendered by the Hon'ble Supreme Court in