The welfare of the child is paramount in custody and visitation matters, and both parents have a right to access the child.

JUDGMENT

1. This petition has been filed with the following prayers:

"In light of the facts and circumstances stated hereinabove, the Petitioner humbly prays before this Hon'ble Court to:

A. Pass an Order setting aside the Order dated 28.10.2021 passed by the Ld. Principal Judge, Family Court, South-East, Saket Courts; and/or

B. Any other order that the court may pass in light of justice, equity and good conscience."

2. The petitioner in sum and substance is seeking setting aside of order dated October 28, 2021 passed by the learned Principal Judge, Family Court, South East District, Saket, New Delhi, to the extent that the respondent has been granted visitation rights of the minor child for two hours every day.

3. It is the case of the petitioner that the Trial Court has erred in partially allowing the respondent's application filed under Section 12 of the Guardian and Wards Act, 1890 ('GWA', for short) read with Sections 6(a) and 6(b) of the Hindu Minority and Guardianship Act, 1956 ('HMGA', for short) read with Section 151, Civil Procedure Code, 1908 ('CPC, for short). It is the stand of the petitioner in the petition that the respondent, who is the father of the minor child has admitted himself to be a putative father. The visitation rights being from 6 PM to 8 PM every day have been granted on two major grounds i.e., (i) respondent has admitted the paternity of the minor child and; (ii) respondent is 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 same are misconceived and based on the misrepresentations of the respondent.

4. Ms.Geeta Luthra, learned Senior Counsel appearing along with Ms.Shivani Luthra Lohiya for the petitioner has stated that the petitioner is the mother and natural guardian of the minor child who has barely been weaned off from the mother less thana year ago. She submitted that the minor child cannot be subjected to such a strict unreasonable regime. The Trial Court has disregarded the welfare of the child by permitting unsupervised access of the respondent to the minor child and left it open for him to take the child wherever he pleases during the time period between 6 PM to 8 PM. This is based on the presumption, that the respondent is living on the third floor and the petitioner is living on the fourth floor of the same premises which the petitioner contends to be incorrect. The petitioner stated that the respondent is not residing at the said premises for many months and is now taking the minor child to various unknown and undisclosed locations on the strength of the impugned order. It is also her case that the respondent has not been returning the child at 8 PM which is also a contravention of the impugned order.

5. Ms. Luthra has argued that it is the stand of the respondent that the minor child is his illegitimate son, since the respondent has taken a stand that the child is not born out of lawful wedlock. She stated that the legitimacy of the child flows from marriage and the respondent is a putative father and is not akin to a biological father. She has argued that the findings of the Trial Court run contrary to Section 6 of HMGA and the various judgments of the Supreme Court and the High Courts. She has relied on the judgment of the Supreme Court in the case of ABC v. NCT of Delhi, (2015) 10 SCC 1 to state that in cases where the child is born outside of wedlock the maternity of the mother is established in the women who gives birth to the child, however the paternity remains nebulous and in such cases the preference is given to the mother over the father. She has also relied on a judgment of the Bombay High Court in the case of Dharmesh Vasantrai Shah v. Renuka Prakash Tiwari, AIR 2020 Bom 233 wherein the Bombay High Court had denied custody of the minor child born