Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2025 Supreme(Mad) 4090

IN THE HIGH COURT OF JUDICATURE AT MADRAS
V. LAKSHMINARAYANAN, J.
E.N.Dinesh Raj - Appellant
Versus
S.Vidhya - Respondent
CRP.Nos.3623 & 3626 of 2024 and CMP.Nos.19681, 19811, 19683, 19695, 19696, 19698, 19700 & 19809 of 2024
Decided on : 27-01-2025

Advocates:
Advocate Appeared:
For the Appellant : Mr.Vignesh Venkatachalam
For the Respondent: Mrs.Chithra Sampath Senior Counsel for M/s. Chennai LawAssociates

Visitation rights cannot be unilaterally modified; the child's best interest must be prioritized, ensuring emotional bonds with both parents.

Headnote:(A) Hindu Marriage Act - Section 13

(B) - Divorce - Child custody and visitation rights - The father and mother entered into an agreement regarding visitation rights post-divorce; however, the mother unilaterally modified these rights, leading to the father filing for enforcement. The trial Court modified visitation rights to Court premises, which was contested by the father. The court found that the mother’s claims to restrict visitation were unsubstantiated and that the father's actions did not warrant such limitations. (Paras 36, 38)

(B) Child Welfare - Best interest of the child - The court emphasized the importance of maintaining the emotional bond between the father and child, ruling that visitation should not be confined to Court premises as it hinders the natural relationship. (Paras 33, 35)

Facts of the case:
The parties were married in 2013 and had a child in 2014. After a series of separations and reconciliations, they divorced in 2019, agreeing on visitation rights for the father, which the mother later modified. (Paras 2-4)

Findings of Court:
The court found that the mother had prevented the father from exercising his visitation rights without sufficient basis, and the visitation should be restored outside the Court premises to foster the child's relationship with her father. (Paras 36-39)

Issues: The main issues revolved around the validity of the visitation agreement and the mother's unilateral decision to modify it, as well as the father's fitness for visitation. (Paras 10, 28)

Ratio Decidendi: The court ruled that the mother's unilateral modification of visitation rights was impermissible and that visitation should occur in a conducive environment to strengthen the father-child bond. (Paras 35, 36)

Result: Civil Revision Petitions are allowed with directions to restore visitation rights. (Para 39)

ORDER :

These two civil revision petitions challenge the orders passed by the learned Family Court Judge, Erode in I.A.No.8 of 2020 in FCOP No.32 of 2019 and I.A.No.5 of 2022 in G.W.O.P.No.116 of 2020 dated 26.05.2023.

2. The civil revision petitioner is the father of a minor child. For the sake of convenience the parties shall be referred to as father and mother.

3. The matrimony between the parties took place on 22.02.2013. From the wedlock, a child was born on 03.10.2014. Due to disputes and differences, the parties separated. The mother filed F.C.O.P.No.46 of 2017 on the file of the Family Court at Erode seeking divorce. Due to intervention of friends and family members, the divorce petition was withdrawn on 28.09.2017. Subsequently, the parties reunited only to separate again.

4. On an understanding arrived at between the parties, they presented FCOP No.32 of 2019 invoking Section 13(B) of Hindu Marriage Act . A decree for divorce was also granted on 30.05.2019. For the purpose of this revision, we are not concerned with the other clauses of the agreement. The agreement, in so far as the child is concerned, is found under clauses 10, 12 & 13. Clauses 12 & 13 of the agreement are extracted as below:-

5. In order to prove this agreement, both the parties entered the witness box in F.C.O.P.No.32 of 2019. The mother filed the following proof affidavit.

6. The father too agreed to this arrangements and filed his proof affidavit which reads as hereunder:-

7. Relying upon the agreement filed by the parties, the Court recorded the agreement as well as the proof affidavit and passed a decree dissolving the marriage that had taken place between the father and the mother.

8. It is not in dispute for two months, thereafter, the father and the mother stood by the compromise that had entered into between them, vis-a-vis the child. Subsequently, mother did not permit the child to have access to the father. Hence, the father took out an application in I.A.No.4 of 2019 seeking to punish the mother for contempt. The mother also took out an application seeking modification of the agreement entered into between the parties regarding the right of visitation. This was in I.A.No.8 of 2020. The application in I.A.No.4 of 2020 came to be closed as not maintainable. The application in I.A.No.8 of 2020 was allowed modifying the right of visitation of the father at the time of passing the decree to 3^rd Saturday of every month in Court premises from the period agreed between the parties between 11:00 a.m. to 12:00 p.m. till she attains majority.

9. As there was some reluctance with the mediators to facilitate the visitation of the father, the venue for visitation was changed to the premises inside the Court. The prayer of the mother seeking modification was granted by the trial Court by changing the visitation to the 3^rd Saturday of every month between 11:00 a.m. to 12:00 a.m. in the Court premises. Challenging the said order CRP.No.3623 of 2024 has come up before this Court.

10. Feeling aggrieved over the refusal of the mother to adhere to the agreement entered into between the parties for visitation, the father filed an application in GWOP.No.116 of 2020 on the file of the Family Court at Erode. Pending the disposal of G.W.O.P.No.116 of 2020, the father filed an application in I.A.No.5 of 2022 seeking interim custody of the child. He wanted the child to be handed over to him on Friday of every week at 6:00 p.m. with a direction to return the child to the mother at 6:00 p.m. on every Sunday. He also sought for telephonic access to the child on the other days. On account of certain developments which I shall refer during the course of this order, the mother filed an application in I.A.No.23 of 2023 seeking orders of the trial Court to cancel the visitation. By an order dated 13.07.2024, the Court agreed with the mother and cancelled the visitation rights modifying it to one of interaction between the father and the child via video conferencing. As that order c