While hearing a custodial dispute between parents, the High Court held that the child is entitled to the love and affection of both parents and while laying down directions held that for any change the parties may approach the family court. the Family shall decide the issue without being influenced by the directions of this court. This judgment was passed in the case of Smt. Sangita Sharma & Another. Vs. Sh. Rohit Kalia with Sh. Rohit Kalia vs. Smt. Sangita Sharma [Cr.M.P.No.1183/2018, 413/2019, 686/2020, 1696/2020 in Cr.MMO No.191/2016] by a Single Bench consisting of Hon’ble Justice Vivek Singh Thakur.
The parties to the proceedings were husband and wife and have a son. Their marriage was solemnized according to the Hindu Rites and rituals. Their marital life was neither happy nor healthy, however they were blessed with a son in 2014 and he is at present 6 and ½ years old. Both the wife and husband initiated various proceedings against each other under various enactments. The judicial magistrate granted interim maintenance of Rs.10,000/- but the same was reduced on a criminal revision petition filed by husband in the sessions court. The wife approached the High Court against the same order. Mediation was conducted where both of them decided to drop all the pending proceedings and decree for mutual divorce will be passed. With regards to the custody of child it was agreed that the son will be with the wife who agreed and undertook to bear all legal obligation for maintenance, upbringing and ensuring the welfare of minor till he attains the age of majority without claiming any financial and other contribution of any kind from the husband, his relatives, friends etc. the husband made a deposit of 3,50,000/- in the name of his son. It was agreed that right of visitation would be 4 times in a month and son will be identified as Yuvan Kalia alias Aadvik Sharma.
The Husband preferred a new Cr.M.P since the wife had not corrected the name in Aadhar card and that she was not handing over documents with corrected name, to the father of child, enabling him to deposit the amount in terms of settlement against complete correct name of the child. Further another petition was filed by the Husband for weekend custody of child, right to attend Parent Teacher Meet, correction of name in Aadhar Card and right to know the location of child and his school in terms of Child Access & Custody Guidelines and Parenting Plan. Another one was filed by the husband seeking electronic contact with the minor child on mobile and email id; and again a petition seeking direction to mother to permit the father to meet his child as per visiting rights as agreed between the parties.
After hearing bot the parties, the High Court observed that right of visitation for four times in a month will not be altered for any reason, but the mode and manner in which the said right is to be exercised can be varied, altered or modified. Therefore, in my opinion the terms and conditions to exercise visitation rights contained in clause 9 can be varied, altered and modified, but frequency of visitation cannot be less.
The High Court held that in the present case falls within the non-local guidelines under chapter 4, where the non- custodial parent is entitled to at least one weekend vacation on every week, right to spend holidays, celebrate religious holiday, right to spend 50% of long vacation such as Diwali, Christmas and summer and winter. The Court also held that the decision should be taken with paramount importance given to the child and keeping the present pandemic in mind, the child should know the presence of father also
The High Court concluded by holding, “Parties are also at liberty to approach the Family Court/District Court, as the case may be, to alter, vary or modify the aforesaid terms and conditions, mechanism and manner of exercise of visitation right for plausible reasons existing on date.”
