Recently, the Madras High Court held that the grant of visitation rights under Section 26 of the Hindu Marriage Act, 1955 (HMA), must never compromise a child’s physical, moral, or emotional well-being.
The case stemmed from matrimonial proceedings in which the wife sought dissolution of marriage under Section 13(1)(ia) of the HMA, along with a claim of Rs. 75,00,000 as permanent alimony under Section 25 of the HMA. During the pendency of the proceedings, the husband moved an application under Section 26 of the HMA seeking visitation rights to meet his minor daughter on weekends. The I Additional Family Court, partly allowed his plea, directing that the child be produced at the Family Court premises on the first and third Saturdays of each month for interaction between father and daughter.
Challenging this arrangement, the mother approached the High Court under Article 227 of the Constitution, contending that the order imposed undue hardship on the child and herself. She pointed out that she resided in Hosur, worked in Bengaluru, and had to bear the entire cost of travel to Chennai despite the father not contributing to the child’s maintenance. The father, in response, expressed willingness to meet the child at Vellore, citing apprehension for his safety if he travelled to Hosur due to the mother’s family’s influence in the locality.
Justice M. Jothiraman observed that compelling a young child to undertake repeated travel merely to facilitate parental visitation would expose her to “physical and psychological hardship.” He accordingly directed that “instead of the petitioner/wife and the minor girl child travelling from Hosur to Chennai, the respondent/father shall have the visitation rights to see his minor child Liruthi, aged 8 years, on the 1st and 3rd Saturday of every month from 11.00 a.m. to 2.00 p.m. at the Child Care Centre attached to the Family Court at Krishnagiri.”
By this calibrated modification, the Court placed the child’s comfort and well-being above procedural convenience, signalling that visitation arrangements must adapt to the realities of a child’s life rather than the logistical preferences of adults.
Observing that the “biological parents’ affection is to see their child and so also the child has affection over both of them,” the Court nevertheless emphasised that parental visitation must operate within limits that safeguard the child’s welfare.
Justice Jothiraman held that “the Court has to ensure visitation rights to the biological parents in a manner known to law. When the custody of the child is entrusted to one of the parents, well being of the child should be taken into consideration while granting the right of visitation to another. Welfare of the child alone is of paramount consideration while dealing with cases pertaining to grant of visitation rights.”
Further, while recognising the father’s entitlement to meet his child, the Court cautioned that “it should not disrupt the child’s schooling, physical, moral, emotional and intellectual development.”
The Court also invoked Article 51A(k) of the Constitution, reminding that it is the fundamental duty of every parent to ensure educational opportunities for their child between the ages of six and fourteen.
Relying on the Supreme Court’s decision in Yashita Sahu v. State of Rajasthan, the Bench reproduced the apex court’s dictum that “a child of tender years requires the love, affection, company, protection of both parents... Just because the parents are at war with each other does not mean that the child should be denied the care, affection, love or protection of any one of the two parents.”
Holding that the child’s best interests must always prevail over competing parental concerns, the Court modified the Family Court’s order to permit the father to meet the child at Krishnagiri, a more convenient and less stressful location for the minor.
Concluding the matter, the Court stated that “the child’s need and well being are of utmost importance... Considering the age of the child, physical and psychological hardship she would face, if she is permitted to travel from Hosur to Chennai... this Court is inclined to modify the condition imposed by the Court below.”
The revision petition was accordingly disposed of, with the modified visitation arrangement directed to continue, ensuring the child’s welfare remains the paramount consideration.
Case Title: X vs. Y
Case No: CRP.No.3407 of 2023
Coram: Justice M. Jothiraman
Advocate for Petitioner: Adv. K.Sumathi
Advocate for Respondent: Adv. K.Chandru
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