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MADRAS HIGH COURT
R. Subramanian and N. Senthilkumar, JJ.
Ashwanth Pothy – Appellant
versus
Asmitha Alanknitha – Respondent
C.M.A. No.2822 of 2023 and
C.M.P. No.26396 of 2023
Decided on 15.12.2023
Counsel for the Parties:
For the Appellant: Mr. T.R. Rajagopal, Senior Counsel for Mr. N.C. Ashok Kumar
For the Respondent:Mr. Dhalapathy Vignesh Kumar, Advocate
IMPORTANT POINT
Visitation rights should be meaningful and it cannot be just on paper.
Headnote:
Guardians and Wards Act, 1890 – Section 25 – Visitation rights – Curtailment – Appeal by husband – Order passed by Family Judge does not help welfare of child – Two hours meeting, once in 15 days in a public place, will only increase traumatic experience of child – Family Judge had also stated that mother should be with child when visitation takes place – Very serious allegations made by spouses against each other – Presence of one spouse during visitation by other will only lead to bitter fight between them, which would definitely be an invasion on human right that child is entitled to – Whatever may be dispute between husband and wife, same cannot stand in way of father visiting child and such visitation should be meaningful and it cannot be just on paper – Order of Family Court needs modification – Order of visitation modified. (Paras 8, 9, 11 and 14)
Result: Appeal partly allowed.
JUDGMENT
R. Subramanian, J.—The husband who has been favoured with a not so meaningful order for visitation is on appeal.
2. The proceedings for divorce are pending. The husband sought for visitation of the child aged about 2 years. While not denying the right of the husband for visitation, the wife contended that it will be harmful if the child is left with the husband for a long time. The Family Court took note of the entire circumstances where there were allegations and counter allegations between the parties and passed an order for visitation. The operative portion of the same reads as follows:-
In the result, the petition is partly allowed and visitation right is granted to the petitioner/ husband by permitting him to meet his daughter Nyra Ashwanth in any public place such as Malls, temples or parks which is nearer to the residence of the respondent/ wife in 1st and 3rd Sundays of every month between 11.00 a.m to 1.00 p.m. It is further clarified that the respondent/ mother of the child is permitted to remain with the child and the petitioner shall not provide anything to the child without the consent of the respondent and he shall not take anybody with him except his parents during the said visit and he should not do anything harmful to the child and the place may be decided by the parties well in advance and informed through their counsel.
3. Aggrieved, the husband is on appeal.
4. Mr.T.R.Rajagopalan, learned Senior Counsel appearing for the appellant would vehemently contend that the order of visitation should be a meaningful order. Allowing the husband to be with the child for just 2 hours, once in 15 days, that too, in a public place would be more detrimental to the child than being of any use. The learned Senior Counsel would also submit that the child must have the affection of both the parents. The fight between the parents, which is, many a times, an egoistic fight should not affect the child.
5. He would also draw our attention to the judgment of the Hon’ble Supreme Court Yashita Sahu Vs. State of Rajasthan and others reported in (2020) 3 SCC 67, wherein, the Hon’ble Supreme Court while dealing with the visitation rights had observed as follows:-
20. It is well settled law by a catena of judgments that while deciding matters of custody of a child, primary and paramount consideration is welfare of the child. If welfare of the child so demands then technical objections cannot come in the way. However, while deciding the welfare of the child, it is not the view of one spouse alone which has to be taken into consideration. The courts should decide the issue of custody only on the basis of what is in the best interest of the child.
21. The child is the victim in custody battles. In this fight of egos and increasing acrimonious battles and litigations between two spouses, our experience shows that more often than not, the parents who otherwise love their child, present a picture as if the other spouse is a villain and he or she alone is entitled to the custody of the child. The court must therefore be very wary of what is said by each of the spouses.
6. The Court went on to further observe that a child is not an inanimate object which can be tossed from one parent to the other. Every separation, every reunion may have a traumatic and psychosomatic impact on the child.
7. In Amyra Dwivedi (Minor) through
her mother, Pooja Sharma Dwivedi Vs. Abhinav Dwivedi and another reported in (2021) 4 SCC 698, the Hon’ble Supreme Court had this to say:—
4. When a court grants visitation rights, these rights should be granted in such a way that the child and the parent who is granted visitation right, can meet in an atmosphere where they can be like parent and child and this atmosphere can definitely not be found in the office of District Legal Services Authority. That atmosphere may be found in the home of the parent or in a park or a restaurant or any other place where the child and the parent are comfortable.
8. If we are t
