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Synopsis

Emphasizing a child's need for the love and care of both parents, the Delhi High Court recently held that non-custodial parents must have visitation rights to facilitate ongoing contact and relationship-building with their children.

“It cannot also be disputed that a minor child requires the love and affection of both his parents. Therefore, even if the custody of the child is with one parent, the other parent must have visitation rights so as to ensure that the child maintains contact with the other parent”, the bench of Justice Rajiv Shakdher and Justice Amit Bansal held. 

The case stemmed from an appeal challenging an order of the Family Court, wherein he was denied interim custody of his child as the child showed discomfort during their interactions. 

The husband contended that his wife had coached the child to behave as if he were scared of his father. He further claimed that he could not have meaningful meetings with the child at the Children’s Room in Dwarka because the wife consistently attended these meetings and influenced the child's behavior. He has not seen his child for the past two and a half years, causing the child to develop apprehension toward meeting his father. He further argued that his wife, a working woman with daily working hours from 8 am to 6 pm, lacked the time to care for the child. 

Advocate Tariq Ahmed, representing the wife, objected to the admissibility of the appeal. Advocate Ahmed argued that appealing the order issued under Section 12 of the Guardian and Wards Act, 1980, is prohibited by Section 47 of the Guardian and Wards Act, 1980, and Section 19(1) of the Family Courts Act, 1984. Advocate Ahmed argued that the child has witnessed incidents of domestic violence perpetrated by the husband against his wife. Therefore, granting interim custody of the child to the husband would not be in the child's best interests.

The court noted the interim report submitted by Children’s First, the institution where the child underwent a psychological evaluation, as well as the reports filed by the Family Court Counsellor detailing the interactions between the child and the husband.

The court highlighted that a minor child benefits from the affection and involvement of both parents. Therefore, even if custody resides primarily with one parent, the other should be granted visitation rights to maintain meaningful contact. Joint parenting is generally favoured, and any departure from this norm by the court requires clear justification. “One of the facets of joint parenting is the grant of visitation rights. At times, the courts need inputs from domain experts. The timing, duration and whether oversight of say a child counsellor is required during visitation by a non-custodial parent, is a call that the court has to take bearing in mind the best interest of the child”, the court emphasized. 

The court examined the order of the Family Court, stipulating that the husband could visit the child on the first and third Saturdays of each month at the Children’s Room, Dwarka Courts, from 3:00 pm to 4:00 pm.

The court further opined that granting interim custody to the husband at this stage would not serve the child's best interests. The reports indicate the child's discomfort and emotional distress in the husband’s presence, exacerbated by the child's young age of 8 years. Therefore, the court found it inappropriate to grant interim custody to the husband or to entertain the husband’s proposal for the child to visit grandparents, as these interactions can only be constructive once the child overcomes his current apprehensions.

Accordingly, the court dismissed the appeal.

Case Title: Amit Sharma v Sugandha Sharma (2024:DHC:5017-DB)