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Synopsis

The Karnataka High Court recently observed that sufficient visitation rights to a parent who is not given the child's custody should be granted so that the child may not lose social, physical, and psychological contact with the parent.

While observing so, the court ordered a woman to follow the arrangement she reached with her husband about guardianship, custody, and visitation rights for their minor son.

A division bench of Justice Alok Aradhe and Justice Anant Ramanath Hegde was dealing with a writ petition filed by a father under Article 226 of the Constitution of India.

Through his writ petition, the father prayed to produce his son before him and to hand over the custody to him as well.

The court while dealing with the matter directed the mother of the child to hand over the custody of the son to the father. Further, the court directed that the father shall be on leave to spend the whole time with his son.

The court got married in the year February 28, 2011. On December 10, 2011, a son was born out of wedlock. Due to marital disputes, the couple did not stay together past 2014. Later, the wife filed a suit under Section 125 of the CrPC to obtain maintenance for her and the boy. The husband appealed to the Supreme Court, where the parties reached an amicable arrangement.

The wife was named as the son's guardian, while the petitioner-father was allowed weekend visitation privileges as well as custody of the child throughout the summer and winter holidays.

The petitioner claimed that during one of the weekends in January 2023, he was denied access to the child and that, despite the start of the summer holidays, custody of the boy was not given over to him as mentioned in the terms of the compromise in the agreement.

He also tried to contact via email but the petitioner was denied access to the son.

Thus, he filed a writ of habeas corpus.

Counsel appearing for the petitioner stated that he is the Senior Manager in Hindustan Aeronautics Limited and is entitled to access to the son in view of the compromise arrived at between the parties. He also submitted that the petitioner had already applied for a grant of leave and in case an opportunity is granted to the petitioner to spend some time with the son for such period as the high court may deem fit, the petitioner shall obtain leave and shall be with his son all the time.

Counsel representing the respondent argued that the petitioner had not placed on record the leave grant certificate and no leave had been granted to him. It was also argued that the current situation did not involve illegal confinement because the son was in the custody of the mother and the terms and conditions of the parties' agreed-upon settlement have been violated, the petitioner was free to commence contempt actions before this Court.

The court after hearing the arguments noted, "The petitioner-father and respondent-wife had reached an agreement under which the petitioner is entitled to visit the child on weekends and has custody of him during summer and winter holidays. n this instance, the petitioner has admittedly been denied access to his son throughout the Summer Vacation. As a result, on the facts of the case, the writ of Habeas Corpus is ruled to be maintainable."

The court also relied on the case of Yashita Sahu vs. the State of Rajasthan, in which the Supreme Court ruled that a writ of Habeas Corpus is maintainable if the kid is in the custody of one of the parents.

“The Court has to ensure that sufficient visitation rights to a parent who is not given child's custody should be granted so that the child may not lose social, physical and psychological contact with the parent,” the court noted.

Further, the court also said, “The parent who is denied the custody of the child should have access to the child especially when both parents live in the same city. The parents are under an obligation to provide for an environment which is reasonably conducive to the development of the child.”

Accordingly, the court allowed the writ petition and handed over the custody of the son to the petitioner till June 04 2023.

Case Title: XYZ vs. The State of Karnataka & Anr.