Facts
The wife/petitioner had sought a divorce under the Hindu Marriage Act, 1955, under sections 13(1) (i-a) and Section 25. She has also sought a permanent alimony of 75,00,000 INR. The Respondent filed an application under Section 26 of the Act in I.A.No.1 of 2023 in O.P.No. 2378 of 2022, asking for visitation rights for him to see his minor daughter of about 7 years every weekend on Saturday and Sunday till the divorce was granted. The Court partly allowed for it, stating that the child be produced at the Child Care Centre attached to the Family Court at Chennai on the 1st and 3rd Saturday of every month between 11:00 am to 2:00 pm with certain conditions.
The petitioner was a resident of Hosur and was working in Bangalore, and found that would be a struggle and had filed for the Civil Revision Petition.
Issues
- Is it necessary for one of the parents to go through all hardships just so the other gets visitation rights?
- What is the need for visitation rights?
Legal Provisions
Section 13 of the Hindu Marriage Act, 1955, deals with the grounds for divorce. The petitioner has filed for divorce on the grounds of cruelty under Section 13(1) (i-a).
Section 25 of the Hindu Marriage Act, 1955, deals with alimony and maintenance. The petitioner has sought permanent alimony of 75,00,000 and has asked for maintenance for the child and for her travel expenses.
Section 26 of the Hindu Marriage Act, 1955, provides custodial rights of children. The respondent under this section has sought visitation rights until the main petition was disposed of.
Article 51 A of the Constitution was cited by the Judge, stating the fundamental duty of a citizen of India to provide mandatory education to a child below 14 years.
Arguments
P(Petitioner):
The petitioner said that she was residing in Hosur and was working in Bangalore. She had to leave her work and take her child along with her every time there was a hearing in the Madras High Court. She said that she has been handling all the expenses of the travel for her and her child on her own without any support from her husband. The travel expenses are high for two people, and she is also lagging behind on her work. The petitioner, through the I.A. No. 2 of 2023, had sought maintenance in regards to maintaining the child, but the husband has not contributed a single bit towards it to support her visit to Chennai on the weekends. The petitioner also stated that the child had to miss classes and had to travel such a long distance, and it was taking a toll on the well-being of the child. The petitioner prayed that the court ask the respondent to come visit the child in Hosur.
S(Respondent):
The only argument made by the respondent’s counsel was that the petitioner’s family was very influential and there was a threat to his life in Hosur, and that he is willing to meet the child at Vellore, which is a common place for both parties.
Analysis
The Court accepted the Fact that the minor child was with the mother and that the petitioner had to travel from Hosur to Chennai with the child to facilitate the visitation right of the respondent.
The Court said that the affection and love of the biological parents is necessary for a child to show affection to both and not keep away from one.
The Court also implied that while it’s necessary to ensure that the love of both parents is given, the welfare of the child is of higher priority. The father should have visitation rights, but that should not disrupt the child’s schooling, physical, emotional and intellectual development. The Court also cited Art. 51A of the Constitution, stating the duty to ensure proper education to a child below 14 years, and also cited the case of Yashita Sahu v St. of Rajasthan (2020), where the Supreme Court held that the welfare of the child is paramount in matters relating to custody. The Supreme Court has said that there is a necessity for visitation rights to ensure that the child doesn’t lose social, physical and psychological contact with one of the parents and only in extreme conditions can a parent be denied visitation rights.
Judgement
Keeping the precedent of the Supreme Court and taking into consideration the need for parental love and the well-being of the minor girl child, the court declared that they meet at Krishnagiri, which is close to Hosur, and that would prevent the child from physical and psychological hardships.
Conclusion
In this case, the court gave importance to the well-being of the child and also said that every parent should play a role in taking care of the minor child’s well-being. It is not a single parent’s duty to ensure the well-being of the child, and given the situation, the court declared that the father go visit the child at Krishnagiri, a place closer to Hosur. This case is an example of how the well-being of the minor child is far more important than the custody and visitation rights given in matrimonial issues.
Click here to read more: P v. S (Confidential)
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WRITTEN BY I Sharan
