Point of Law: High Court is not vested with any unlimited prerogative to correct all kinds of hardship or wrong decisions made within limits of jurisdiction of subordinate courts or tribunals.

JUDGMENT :

Satyen Vaidya, J.

Petitioner has invoked jurisdiction of this Court under Article 227 of the Constitution of India to assail order dated 18.07.2020, passed by learned District Judge (Family Court), Shimla, in case CMP No. 1490 of 2019.

2. Petitioner and respondent are married to each other. Their relations became strained giving rise to multifarious litigations. One of these is the petition for dissolution of marriage by decree of divorce filed by the petitioner under Section 13 of the Hindu Marriage Act. The ground pleaded in said petition is “cruelty”

3. During the pendency of the proceedings of divorce petition, petitioner filed an application before learned District Judge (Family Court), Shimla, seeking custody of only girl child of the parties. Respondent opposed the prayer. Learned District Judge (Family Court), Shimla, ruled the custody of child to remain with respondent. However, visitation rights were granted in favour of the petitioner in following terms:-

(i) The applicant shall meet the child on second and 4th Sunday of the month at a place mutually agreed by the parties between 12 noon to 4 PM. If for some reason this meeting does not happen on the fixed days, then the applicant can meet on the next Sunday.

(ii) The respondent or any other person on her behalf shall produce the child for meeting with the applicant.

(iii) The applicant shall ensure that no act, conduct or work which directly or indirectly leads to convey ill feelings towards the respondent or her parents, is exhibited or used in this meeting.

(iv) There shall be no attempt on his part to induce or influence mind of the child. After meeting, custody of the child shall be handed over peacefully to the respondent.”

4. Petitioner has taken exception to the impugned order on the following grounds: -

(a) The Family Court failed to appreciate that respondent lacked maturity, mental stability, moral character, ability to provide continuing involvement in the community and intimate relationship with girl child etc.

(b) The welfare of the child has been compromised by not allowing the prayer of the petitioner. The paternal grand parents of the child have been divested from the love and affection of the child.

(c) The pleadings and material on record has not been appreciated in right perspective.

(d) The Family Court has based the impugned order on observations drawn from interaction with the parties and the child which amounts to highlighting irrelevant facts and thus, are perverse and erroneous.

(e) The Family Court has failed to appreciate that the child was tutored by respondent and such fact was evident from the conduct of the child in the Court.

5. I have heard learned counsel for the parties and have also gone through the records of the case carefully.

6. In DSG Vs. AKG (2020) 12 SCC 248, Hon’ble Supreme Court while placing reliance on judgment passed by that Court in Nil Ratan Kundu Vs. Abhijit Kundu (2008) 9 SCC 413, has highlighted the relevant parameters to be considered while deciding custody issue as under: -

“17. Reliance is placed on the judgment of this Court in Nil Ratan Kundu & Anr. v. Abhijit Kundu that while exercising parens patriae jurisdiction, the Court is required to give due weight to the ordinary comfort of the child, contentment, intellectual, moral and physical development, health, education and general maintenance, and the favorable surroundings. The Court is not bound either by statutes, nor by strict rules of evidence, nor procedure or precedent. In deciding the issue of custody, the paramount consideration should be the welfare and wellbeing of the child.”

7. Further In Yashita Sahu Vs. State of Rajasthan and Others (2020) 3 SCC 67, the Supreme Court has underlined the requirement and importance of visitation rights as under:-

“22. A child, especially a child of tender years requires the love, affection, company, protection of both parents. This is not only the requirement of the child but is his/her basic human right. Just bec