Visitation rights are essential for a child's emotional development, and denial requires substantial evidence of potential harm.

Headnote:(A) Guardians and Wards Act, 1890 - Section 25 - Family Court Appeal against dismissal of petition for visitation rights - The father sought visitation rights for his minor child, asserting the right to maintain a relationship - The trial court dismissed the application based on a prior settlement deed favoring the mother’s custody - The court emphasized that visitation rights are essential for the child’s development and should not be denied without substantial evidence of harm. (Paras 9, 10)

(B) Welfare of the Child - The paramount consideration in custody and visitation matters is the welfare of the child, which includes the right to love and affection from both parents - The court referenced a Supreme Court ruling affirming that visitation rights are crucial for a child's development, even in cases of separated parents. (Paras 9, 10)

Facts of the case:
The petitioner sought visitation rights for his son after the trial court dismissed his application, citing a settlement deed that granted custody to the mother. The parties had previously settled disputes regarding custody and maintenance of the child. (Paras 2, 6, 10)

Findings of Court:
The court found it just and reasonable to grant the petitioner visitation rights once a month despite the prior settlement, as the father had not sought custody. (Paras 10, 11)

Issues: The primary issues included the validity of the previous settlement regarding custody and the father's right to visitation. (Paras 9, 10)

Ratio Decidendi: The court ruled that visitation rights are essential for the child’s emotional development, and the absence of evidence proving harm to the child is insufficient to deny these rights. (Paras 9, 10)

Result: The Family Court Appeal is allowed, granting visitation rights to the petitioner once a month. (Paras 11)

JUDGMENT :

P. SREE SUDHA, J.

1. This Family Court Appeal is filed against the Order dated 04.08.2011 in O.P. No. 1403 of 2009 passed by the learned Family Court Judge, Hyderabad.

2. One Mohd. Ahmed Muzaffar filed O.P. No. 1403 of 2009, against his wife Syeda Zaheerunnisa @ Darakshaan under Section 25 of Guardians and Wards Act, seeking to permit him to visit and see the minor child namely M.A. Jabbar @ Osma Waleed, who attains the age of seven (7) years. Petitioner himself examined as PW-1 and marked Exs.P.1 to P.3 on his behalf. During the course of trial Respondent set ex-parte. The trial Court after considering the oral and documentary evidence of both side, dismissed the application. Aggrieved by the said Order, petitioner therein preferred the present appeal.

3. The learned Counsel for the appellant/petitioner mainly contended that the settlement deed was not scrutinized in its correct prospective. He further contended that it is a settled law that father is equally entitled to have visitation rights of his minor child. Respondent has not lead any evidence to prove that visitation rights would cause any harm to the minor child, but the trial Court erred in dismissing this application and thus requested the Court to set aside the Order passed by the trial Court.

4. As per the proceedings dated 08.11.2023, notice sent to the respondent was returned ‘un-claimed’. It is relevant to note that un-claimed amounts to service of notice. As there is no representation on behalf of the respondent, heard the arguments of the learned counsel for the appellant/petitioner on 22.11.2023, and reserved for judgment.

5. The parties herein are referred as petitioner-husband and respondent-wife as arrayed in the trial Court for the sake of convenience.

6. O.P. No. 1403 of 2009 was filed by petitioner/husband seeking visitation rights on 11.12.2009, stating that the marriage of the petitioner with respondent/wife was performed on 03.08.2007, and out of their wedlock a child was born to them on 06.05.2008, namely Mohd. Abdul Jabbar, but respondent left the house of petitioner on 01.04.2008, and filed a criminal case against the petitioner for the offence punishable under Section 498-A of IPC and under Dowry Prohibition Act vide F.I.R. No. 178 of 2009 for return of Mohd. Abdul Jabbar and also for return of Jahez articles. With the intervention of elders, both the parties entered into settlement on 01.08.2009. In the said settlement deed, petitioner agreed to return all the Jahez articles. It was observed that the boy was 13 months old, as on the date of entering into the settlement deed dated 01.08.2009. As per the settlement deed executed between the parties, the child Mohd. Abdul Jabbar aged about 13 months old will be in the custody of mother and till the settlement of disputes in the Court, she has to bear all the needs of the child. It seems she obtained khula from the petitioner and it was specifically mentioned that after khula there is no relation between both the parties.

7. In the Counter filed by the respondent/wife, she admitted that the marriage between the respondent and petitioner was consummated and a child was born on 06.05.2008. She took khula and jahez articles were returned by the petitioner. She admitted that it was settled between the parties that minor child will remain with her. She further stated that she lived happily for about six or seven months only and later she noticed abnormal behavior of the petitioner at her matrimonial house. After delivery at Durra-shehwar Hospital, petitioner entered into the room and forcefully took the minor child by holding his neck like an animal and started running out of the hospital. The staff and doctors of the hospital chased him and caught him and when the police was called to the hospital, he handed over the child to the police, thus she saved the child with great difficulty. By showing the certificate of his mental condition, the relatives of the petitioner took him back to his house. The

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