Parental visitation rights should not be restricted solely due to one parent's job demands without substantial justification.

J U D G M E N T

Abdul Rehim, J.

Challenge in this original petition, instituted under Article

227 of the Constitution of India , is against an order passed by the Family Court, Kottarakkara in I.A. No.2188/2018 in O.P. No.713/2016. By the impugned order the Family Court had modified its earlier order passed in I.A.No.2682/2017 through which arrangements was made for interim custody of the minor child to the petitioner herein. It is pointed out that the earlier order was passed on the basis of consent of both the parties.

2. The parties herein are husband and wife respectively. OP 713/2016 was instituted by the respondent before the Family Court, Kottarakkara seeking declaration of guardianship and permanent custody of the minor child, born to the parties. In the original petition, the petitioner herein filed I.A.No.2682/2017 seeking interim custody of the child pending disposal of the original petition. A consented order was passed by the Family Court in IA 2682/2017 on 11th December, 2017, wherein both the parties have agreed that the child can be given interim custody to the petitioner on the 1st and 3rd Saturdays at the court premise, from 10.30 a.m. till 1.30 p.m. Thereafter the respondent herein filed IA 2188/2w018 seeking modification of the above said order mentioning the reason that the respondent is employed as a 'Senior Staff Nurse' at the Government Medical College, Parippally and that she is in charge of the 'Operation Theater'. Hence she is not in a position to take leave for the purpose of bringing the child to the Family Court. The application was opposed through objections filed by the petitioner herein. The court below, after considering the objections of the petitioner and after hearing both the sides, passed the order impugned herein, modifying the existing arrangement of visitation and permitting the respondent to produce the minor ward only on the posting dates of the case.

The said order is under challenge herein.

3. Learned counsel for the petitioner contended that, the Family Court went erred in modifying the earlier order merely for the reason that the respondent is working as a Senior Nurse at the Medical College, Parippilly and by merely taking note of the exigencies of her job, pointed by the respondent.

4. Learned counsel appearing for the respondent on the other hand contended that, the petitioner had in fact failed to avail the visitation rights already allowed through the earlier order, on different occasions. Due to his absence, the respondent has been put to prejudice, because she has to wait in the Family Court for considerable time, on various occasions.

5. If there occurred any failure on the part of the petitioner in availing the visitation right permitted through the earlier order, the respondent could have abstained from complying with the order, after noticing such failure to the Family Court. But in the case at hand, she sought for a modification only on the ground that she is finding it difficult to comply with the order due to the exigencies of her job as projected therein. Therefore the question is as to whether the petitioner/father can be denied of his rights for having the visitation, merely because the respondent/wife has got some exigencies with respect to her job. Even if it is assumed that she is in charge of the 'Operation Theater', being a Senior Nurse, we do not think that she will be precluded from availing any leave or from availing holidays. Merely because of the exigencies expressed by the respondent, it is not fair and correct to deny the legitimate rights of the petitioner to have visitation on the child. We are of the considered opinion that the reasoning mentioned by the Family Court in the order impugned herein cannot sustain.

6. In the result, the above original petition is hereby allowed and the impugned order passed by the Family Court in IA 2188/2018 in OP 713/2016 is hereby quashed. As a consequence, the earlier order passed by the Family Court in IA 2682/2017 da