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Synopsis

The Supreme Court on December 20, 2024, said that the matrimonial disputes and grave allegations between parents should not be an impediment to a child’s right to have care, company, and affection of both the parents, but it cannot be at the cost of the child’s health and wellbeing.

"In all of this, the interest of the minor child is paramount. In the process of adjudicating upon the rights of the parents, her health cannot be compromised," a bench of Justices Vikram Nath and Prasanna B Varale said as it partly allowed an appeal filed by a woman against the order and judgment of the Madras High Court's Madurai bench which had dismissed her miscellaneous appeal and upheld visitation rights granted to father and modified the directions by the Family Court.

The Supreme Court shifted the place of visitation from Karur to Madurai, in order to avoid 150 km travel for the mother and the child.

The parties in the present case got married on September 09, 2021, and a daughter was born to them on June 06, 2022. Shortly after the birth of the child, the wife filed a petition for dissolution of marriage under Section 13(1)(ia) of the Hindu Marriage Act, 1955, on the ground of cruelty.

In her petition, the woman contended that the respondent-husband had continuously been committing domestic violence on her as well as the child. She claimed that he had deserted them on July 01, 2022, and when he returned later, he attempted to kill them on August 16, 2022. She also asserted that he would beat up the child for absolutely no reason. She further submitted that the parties had been living separately since August 18, 2022.

In October 2023, the husband preferred an application under Section 26 of the HMA in the divorce proceedings, seeking visitation rights during the pendency of the proceedings.

The Family Court allowed the husband's application on November 10, 2023 directing that the wife should take the child to Karur, Tamil Nadu, every Sunday in the morning from 10:00 hours to noon, and hand over the child to the husband in the campus of the Kalyana Pasupatheswarar Temple, Karur.

The woman then approached the High Court, contending that she was now residing in Madurai and the distance between Madurai and Karur is 150 kilometers, and thus the long travel of 300 kilometers every Sunday would be adversarial to the health of the child.

Further, she contended that there was a continuous death threat to her and the child's life; the husband had never taken care of the child and the child had never been in his company, thus, the husband was effectively a stranger for the child. Therefore, such visits would only be a source of mental agony to her, she contended.

However, the High Court, while dismissing the miscellaneous appeal filed by her observed that since the father was also the natural guardian of the child, he was also entitled to have custody of the child.

The High Court made attempts at uniting the parties in the interest of the child, but these attempts failed. Thus, while noting its disappointment in the failed reconciliation attempts, the High Court observed that the agony of missing the early childhood of one’s offspring could not be prolonged for any of the parties.

Thus, the High Court modified the directions of the Family Court and directed the wife to take the child to Karur on every Sunday and hand over to the husband between 10:00 AM to 02.00 PM.

Before the apex court, the woman said that while passing the impugned order, the division bench of the High Court did not take into consideration the fact that the venue for the husband to have access to the two years old minor child of the parties was situated 150 Kilometers away from the place of her residence.

The bench, however, opined that while the observation of the High Court that the father being the natural guardian cannot be denied of the care and custody of the child and that his agony of missing his child’s childhood cannot be prolonged, was sound and fair, but it could not override the interest of the child.

"We also recognise that the child has effectively been in the care of the respondent for approximately two months only, as the parents started living separately shortly after her birth. But this does not compromise the respondent’s rights as a father to visit and enjoy the company of his daughter," the bench said.

The court stressed that matrimonial disputes and grave allegations between parents should not be an impediment to a child’s right to have care, company, and affection of both the parents.

In the case, the bench noted, it was evident from multiple failed attempts at mediation that the parties were not inclined to reconcile.

While no guardianship or custody petition has been preferred by the respondent, the visitation rights of the father require a careful and empathetic consideration during the pendency of the divorce proceedings, the bench opined.

It emphasised the husband had the right to visit the child but it could not be at the cost of the child’s health and wellbeing.

"Keeping in mind the best interest of the child and the interests of the parents, we agree with the High Court to the extent of granting certain visitation rights to the respondent, but the directions and set up to enable the same appear to be adversarial to the child and require to be modified," the bench said.

Court found the directions passed by the High Court as well as the Family Court were not supported by any cogent reasons for allowing the visitation to take place at Karur.

"These orders do not provide any justified reasons and do not appear to have kept the best interest and welfare of the child as paramount. Thus, keeping the interest and well being of the child as the priority, we deem it appropriate and just to move the place of visitation from Karur to Madurai," the bench said.

The court, thus, allowed the father to visit the minor daughter every Sunday between 10:00 AM and 02:00 PM, in a public park or a temple premises. Considering the child’s tender age, the court allowed the mother to remain present in such visits at a distance of approximately 10 feet.

Case Title: Sugirtha Vs Gowtham