IMPORTANT JUDGMENTS OF CHILD CUSTODY & VISITATION

IMPORTANT FAVAROABLE JUDGEMENTS CHILD CUSTODY & VISITATION

1. Father was given custody of child mother gets visitation: Mridangra J. Hira Lal Suchak VS. Neena M Suchak Civil Appeal No 69 of 1980, Supreme Court reported in 1 (1983) D.M.C page 360.: Rajasthan HC judgement.

• Sentimental consideration is not to prevail over obvious welfare of the minor in determining question of his custody to father or mother.
• If the minor is old enough to form an intelligent preference,the court may consider the preference.
• Court may consider the preference of the minor if he is old enough to form an intelligent opinion of the same.
• Court has to be guided by the only consideration of the welfare of the minor.
• Apart from education also needs financial backing which the respondent is not in position to give.
• It will be in the interest of the welfare of minor Rinku to be in custody of his natural guardian and father ,the appellant.

2. SC Direction on visitation rights of the children : Bench:G Singhvi, A K Ganguly IN THE SUPREME COURT OF INDIA ,CIVIL APPELLATE JURISDICTION Supreme court Judgement ,CIVIL APPEAL NO.2704 OF 2010 (Arising out of SLP(C) No.19935/2009) Vikram Vir Vohra ..Appellant(s) Versus Shalini Bhalla ..Respondent(s) J U D G M E N T,GANGULY, J.

• This Court finds that so far as the order which had been passed by the High Court, affirming the order of the Trial Court, the visitation rights of the appellant-father have been so structured as to be compatible with the educational career of the child.
• The principles in relation to the custody of a minor child are well settled. In determining the question as to who should be given custody of a minor child, the paramount consideration is the “welfare of the child” and not rights of the parents under a statute for the time being in force”.
• Insofar as the father is concerned, he is already established in India and he is also financially solvent. His visitation rights have been ensured in the impugned orders of the High Court. His rights have been varied but have not been totally ignored.

3. IN THE SUPREME COURT OF INDIA ,CIVIL APPELLATE JURISDICTION,CIVIL APPEAL NO. 5099 OF 2007,Gaurav Nagpal …Appellant Versus,Sumedha Nagpal ….Respondent (With Criminal Appeal NO. 491 of 2006),JUDGMENT,Dr. ARIJIT PASAYAT, J.

• it cannot be overlooked that the father needs to have visitation rights of the child.
• In partial modification of the order passed by the District Judge and the High Court, we direct that the visitation rights shall be in the following terms:(1) During long holidays/vacations covering more than two weeks the child will be allowed to be in the company of the father for a period of seven days.
• The word `welfare’ used in Section 13 of the Act has to be construed literally and must be taken in its widest sense. The moral and ethical welfare of the child must also weigh with the Court as well as its physical well being. Though the provisions of the special statutes which govern the rights of the parents or guardians may be taken into consideration, there is nothing which can stand in the way of the Court exercising its parents patriae jurisdiction arising in such cases.

4. Delhi High Court Lekh Raj Kukreja vs Raymon on 10 February, 1989 Equivalent citations: AIR 1989 Delhi 246, 38 (1989) DLT 137 Author: M Chandra.

• Ordinarily custody should go to natural guardian. However, there may be cases where there is a conflict in claim of father as natural guardian of the male child and welfare of the child. Such cases are far and few. It is only in extreme case of illiteracy, poverty or delinquency of the father that his claim to the custody of child can be disregarded. Otherwise the courts would strain to reconcile the claim of the father based on his right as natural guardian of the male child with the welfare of the child the balance tilting in favor of the welfare of the child it being of paramount and supreme importance.
• It is submitted by the counsel for the wife that the wife should be permitted to visit the child.

5. Supreme Court of India,Sheila B. Das vs P.R. Sugasree on 17 February, 2006

Author: A Kabir,Bench: B.P. Singh, Altamas Kabir,CASE NO.:Appeal (civil) 6626 of 2004,PETITIONER:Sheila B. Das,RESPONDENT:P.R. Sugasree, DATE OF JUDGMENT: 17/02/2006.

• The appellant will also be entitled to the custody of the minor for 10 consecutive days during the summer vacation on dates to be mutually settled between the parties.
• The appellant, upon prior intimation to the respondent, will also be entitled to meet the minor at her school once a week after school hours for about an hour.
• The respondent shall make arrangements for Ritwika to continue her studies in her present school and to ensure that she is able to take part in extra-curricular activities as well.
• The respondent(Father) appears to be financially stable and is not also disqualified in any way from being the guardian of the minor child. No allegation, other than his purported apathy towards the minor, has been levelled against the respondent by the appellant. Such an allegation is not borne out from the materials before us and is not sufficient to make the respondent ineligible to act as the guardian of the minor.

6. Supreme Court of India,Thrity Hoshie Dolikuka vs Hoshiam Shavaksha Dolikuka B on 4 August, 1982,Equivalent citations: 1982 AIR 1276, 1983 SCR (1) 49,Author: A N Sen,Bench: Sen, Amarendra Nath (J),PETITIONER:THRITY HOSHIE DOLIKUKA Vs.RESPONDENT:HOSHIAM SHAVAKSHA DOLIKUKA B DATE OF JUDGMENT04/08/1982.

• we can place no reliance on any kind of wish of Gospi who is not in a position to form any independent volition of her own and she expresses different kind of wishes in different situations under the influence and domination of others. As we have earlier discussed at length in the judgment, it is not possible for the girl in the situation now prevailing to express any preferential wish which may require consideration by us to decide her welfare.

• When the school closes for any vacation the girl will live with the father for the first half of the vacation and thereafter will live with the mother during the secoud half of the vacation. The father will arrange to bring the girl from his school to his place.
• The parents will be at liberty to meet the daughter alternatively in accordance with rules and regulations of the school, the first opportunity of so meeting the daughter being afforded to the father.
• In that view of the matter it does not really become necessary for us to go into the question of the merits of the respective competence of either of the parents. The person to whom the custody of the child has to be entrusted will necessarily be answerable to the school for payment of all charges and expenses of the child and also in relation to any matter concerning the child in her school life.
• Human-beings with frailties common to human nature, may not be in a position to rise above passion, prejudice and weakness. Mind is, indeed, a peculiar place and the working of human mind is often inscrutable. For very many reasons it may unfortunately be not possible for the husband and wife to live together and they may be forced to part company. Any husband and wife who have irreconciliable differences, forcing them to part company, should, however, have sense enough to understand and appreciate that they have their duties to their children. In the interest of the children whom they have brought into existence and who are innocent, every husband and wife should try to compose their differences. Even when any husband and wife are not in a position to reconcile their differences and are compelled to part, they should part in a way as will cause least possible mischief to the children.
• Though the girl is quite bright and intelligent as recorded by the learned Judges of the Bombay High Court in their orders after their interviews with the girl who is of a tender age and is placed in a very delicate and embarrasing situation because of the unfortunate relationship and litigation between her parents for both of whom she has great deal of affection, she is not in a position to express any intelligent preference which will be conducive to her interest and welfare. Mature thinking is indeed necessary in such a situation to decide as to what will enure to her benefit and welfare. Any child who is placed in such an unfortunate position, can hardly have the capacity to express an intelligent preference which may require the Court’s consideration to decide what should be the course to be adopted for the child’s welfare.

7. Madras High Court ,N. Nirmala vs Nelson Jayakumar on 19 August, 1998

Equivalent citations: I (1999) DMC 737, (1998) IIIMLJ 619,Author: C Shivappa,Bench: C Shivappa, K Natarajan

• Though the appellant and the respondent appeared before the Court, for reasons best known to them, reconciliation did not materialise, but their presence before us in a way gave an insight to reflect on the visiting right accorded to the mother.
• we are of the view that the father is most likely to contribute to the well-being of the minor, which includes education, health care and development of the entire personality with a sense of security.
  • In these days, where complaints of eve-teasting are common, the presence of the father will be a shield and the daughter is more secured in his custody and care.
• keeping in view the welfare of the child, the preference of the minor for the father stands first than the claim of the mother, as the father is not suffering from any disability or is any way disentitled for the custody of the minor.
• It is settled in law that normally due to immaturity, in the sense, not able to form an independent decision or opinion, the preference of the minor should not control the Court as a decisive fact in deciding the custody of the minor. But, where the child who has been away from the mother for a long period, should not be forced to go back, against the inclination of the minor, as it may have an adverse effect on the mind of the minor. Therefore, under what circumstance the preference of the minor to be taken into consideration always depends upon the facts and circumstances of each case.

8. Calcutta High Court ,Sanjib Saha vs Smt. Bidisha Saha (Nee Roy) on 31 March, 2006,Equivalent citations: AIR 2006 Cal 214, 2007 (2) CHN 681 Author: K J Sengupta,Bench: K J Sengupta.

• I could understand out of sight and out of mind is a natural thing but this is not desirable in a relationship of natural Father and daughter. This phenomenon is temporary one and this case be eliminated with great effort of counselling and taking such confidence building measure which will bring back the relationship and attraction of the daughter to her father.
• Petitioner being a father has right to see, interact and have company of the girl. It is the basic and natural right of father. It is uncontrollable desire of a father to see his progeny and this is why it has been ensured by the Court’s order passed on consent, as such the Court must see that petitioner should get this right to be asserted lawfully as far as practicable.
• The father of the child, the petitioner No. 1 will have the right to see and/or meet the child at her residence as and when required subject to the convenience of the child and her custodian mother, the petitioner No. 2.

9. IN THE HIGH COURT OF DELHI AT NEW DELHI ,Date of Reserve: 12.8.2008

Date of Order: 25th September, 2008, CM(M) No. 752/2000 25.09.2008

Ram Murti Chopra and Anr. … Petitioner ,Through: Mr. P.Gautam, Advocate

Versus Nagesh Tyagi … Respondent Through: Mr. Vikram Nandrajog, Advocate ,JUSTICE SHIV NARAYAN DHINGRA

• Looking into the fact that grandparents had not even informed the child that he had a father and that they were his grandparents, would naturally bring into the mind of the judge that the development of the child was not on the right course and he was being deliberately poisoned against the father.
• While considering the welfare of the child, the Court has to give due weightage to all the circumstances such as the child’s ordinary comfort and contentment, his intellectual, moral and physical development, his health, education, general maintenance etc. Apart from that the Court has also to give due weightage to the emotional considerations, social set-up, care, attention, career build-up and bringing up of a child as a good human being.
• There can be no substitute for parents of a child. Where a father dies, the child is brought up by the mother and where a mother dies the child is normally brought up by the father. Grandparents cannot substitute the love and affection which is given by a father or mother and the anxiety which a natural father would have to see that his son rises in life and chooses a career of his own choice.
• therefore, directed that during Dusshera holidays and winter vacations, the custody of the child be given to the father for a period of one week each spell of holidays and during summer vacations the custody of child be given to father for a period of one month. The father will continue to bear the education expenses etc. as he already had been doing.

10. 10. IN THE SUPREME COURT OF INDIA ,CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 4308 OF 2012 ,(Arising out of Special Leave Petition (C) No. 13254 of 2011)

10. • The respondent-mother is not in a position to look after the educational need of the elder son and as we do not desire to separate both the brothers, in our opinion, looking to the peculiar facts of the case, it would be in the interest of the children that they stay with the appellant-father.
    • So as to see that the respondent-mother is also not kept away from the children, she shall have a right to visit the children atleast once in a month.
    • The custody of both the children shall be given to the appellant-father before 15th May,2012 and the arrangements with regard to visit of the children etc. shall take effect from 1st June, 2012, the respondent-mother shall do the needful to send the younger son to the residence of the appellant father before 15th May, 2012.