Irfan Ur Rahim Khan vs Smt. Farha Khan
2022 Latest Caselaw 1212 Chatt

                                   1

                                                                    AFR

        HIGH COURT OF CHHATTISGARH, BILASPUR

                         FAM No. 165 of 2019

             (Judgment/order Reserved on 02 02.2022)

                      (Delivered on 09.03.2022)

     Irfan Ur Rahim Khan S/o Anwar Ur Rahim Aged About 61 Years R/o
     E-1, Nutan Colony Sarkanda Bilaspur, Tahsil and District Bilaspur
     Chhattisgarh., District : Bilaspur, Chhattisgarh    --- Appellant

                                Versus

     Smt. Farha Khan D/o Late Anis Hasan Khan Aged About 42 Years
     R/o Jatiya Talab, Om Nagar Jarhabhatha, Bilaspur, At Present Flat
     No. 203, Second Floor, C.K. Highets Chadda Badi Nehru Nagar,
     Bilaspur, Tahsil And District Bilaspur Chhattisgarh. --- Respondent

For the Appellant : Mr. A.A. Ansari, Sr. Advocate with Mr. Aman Ansari and Mrs. Meera Ansari, Advocates.

For the Respondent : Mrs. Indira Tripathi, Advocate

DB : Hon'ble Shri Justice Goutam Bhaduri, Judge &

Hon'ble Mrs. Justice Rajani Dubey, Judge

C.A.V. JUDGMENT/ORDER

Per Goutam Bhaduri, J

1. The challenge in this appeal is to the order dated 16.04.2019

passed by the Family Court Bilaspur whereby the custody of

the child is ordered to be kept with the mother, the

respondent-wife herein.

2. The appeal is by the husband who filed a custody application

before the learned Family Court. The admitted facts of the

case are that the appellant Irfan-Ur-Rahim Khan and non-

applicant Smt. Farha Khan married to each other. Out of the

wedlock, twin children (daughter and son) were born on

22.11.2008 and they were named as Arhan Khan (son) and

Fiyona Khan (daughter). Arhan Khan was suffering from

Nephritic syndrome. Appellant Irfan ur Rahim Khan was

serving in police department and subsequently a divorce was

effected between the appellant and respondent. As per the

averments of appeal, the father and mother along-with

children were residing together till July 2014, but

subsequently their relations became estranged. As a result,

non-applicant mother Farha Khan after intimating the Durg

Mahila Police Station, came to Bilaspur along-with children

and started living separately in a rented house. The husband

father used to meet the children during their stay at Bilaspur.

Subsequently he being in the police department, was

transferred to Sukma and was unable to meet the children.

3. (i) It was pleaded by husband that the mother could not

take care of the children, therefore, in the month of April

2015 she gave the custody of both the children to the

husband and the husband was residing along with the

children at Sukma. Subsequently, certain cases were filed by

the wife. It is further pleaded by the husband that initially an

application was filed by him at Dantewada under the

Guardian and Wards Act, 1890 for custody of children which

was subsequently transferred to Bilaspur Court. In such a

case, on 04.10.2016 a settlement deed was executed

whereby the custody of children was given to the father for

their proper education and thereafter a civil suit bearing

No.552-A/2015 was filed which was disposed on 04.10.2016

without any finding on merit. It was further pleaded that on

05.10.2016, the wife got divorce from him and received an

amount of Rs.10 lakhs towards final settlement and

thereafter on one day she came to the Government quarter

of the appellant and after raising a dispute took the children

with her.

3(ii). Subsequently in year January 2017, minor son Arhan

Khan was left in the custody of the father whereas the

custody of daughter Fiyona was kept by her. It was pleaded

that the wife has extended threat that she will commit

suicide and will implicate the husband in a false case, for

which, a report was made at police station. The husband

alleged in the application for custody that the wife did not

follow the Islamic rituals and she was a Tarot Card reader

which is not recognized in Islam faith and she never

participated in any religious activity, she did not have any

house of her own and resides at a rented house and nobody

is there to take care of the children. The husband further

contended that the wife does not have any source of income

whereas the appellant being placed in a high cadre of Police

Department can very well maintain the children in a better

way and he being father is a natural guardian.

(i) The non-applicant denied all the allegations and in

reply, it was stated that because of harassment and cruelty

meted to her, she along with her children started residing at

Bilaspur since 2012. Thereafter on a false pretext, the wife

was taken to Bhilai but there also because of cruelty and

assault committed by husband, she came back to Bilaspur

for the safe interest of the children and both the children are

living with the mother since their birth and she loves them

more than her life. She further stated that in the month of

April, 2015 the appellant came to her and by extending

threat wanted to take away the children and she became

scared therefore, for safety reasons before the Additional

Superintendent of Police, Bilaspur, under the pressure of

appellant-husband both the children were given for a week

to the custody of the father and the father agreed to return

the children after a week but since the children were not

returned different steps were taken by resorting to various

courts and eventually the custody of children was taken by

filing habeas corpus petition wherein the orders were passed

to hand over the custody to her.

4(ii). It was further contended in the reply that the

appellant has taken a pretext and narrated to the respondent

that she is the second wife and no divorce was effected with

his first wife who was nominee in his service book and

government records, therefore, the names of minors are to

be entered in the service book, so that the retiral and other

service benefits may pass on to them, but since the non-

applicant is second wife, it would not be possible, hence the

steps to dissolve the marriage is to be taken according to the

Muslim law. Thereafter on such pretext the documents were

prepared on the premise of one time settlement of her

maintenance and further it was also impressed that

documents are also required for custody of the children. The

wife contended that in such belief she being the mother has

signed certain settlement-deed, which is null and void. It is

contended that despite execution of the settlement deed,

the children were staying with the mother and they were not

under the custody of the father.

4(iii). The respondent mother further contended that the

father was granted visitation rights and he used to meet the

children and the first wife also does not reside with the

husband and he has to move from place to place in

discharge of official job, as such, nobody would be there to

take care of his children in his absence. The wife further

contended that she is a well educated lady as she belongs to

an educated family and is a famous Tarot card reader and

she had a shop at Bilaspur and also holds the agency of

newspaper whereby considerable income is generated.

Therefore, she was able to take care of children. She has

further stated that the children were taken to Delhi for

admission into St. Maria School but since the cases were

going on, they could not often travel between Delhi and

Bilaspur, as such, the children were brought back to Bilaspur.

She further stated that by order of the Court, visiting rights

were given to the father to meet the children and she over-

all stated that the the welfare of the children in her custody

would be much better than the appellant therefore, the

custody of children sought by the appellant may be

dismissed.

4. The learned trial Court predominantly framed two issues. The

first issue is whether the "supreme welfare" of the children

Fiyona and Arhan Khan lies with custody of applicant Father ?

The Court answered it in negative. The second issue is

whether the "supreme welfare" of Arhan Irfan Khan lies with

custody of non-applicant mother. The court answered it in

positive. Thereby the application for custody of the children

by father was dismissed.

5. Mr. K. A. Ansari, learned Senior Advocate assisted by Mr.

Ansari, counsel for the appellant would submit that the

learned trial Court failed to consider the fact that a

settlement was executed between father and mother

whereby the father was given the custody of the children.

He would submit that the settlement deed which was placed

before the Court below (Ex.P-3) would show that the mother

knowing fully well has given the custody of the children to

the father, therefore, the evidence whatsoever has been

adduced by the parties i.e., the mother and father in this

court would be immaterial. He would further submit that

there were two settlements - one was for the custody of the

children and other one was for divorce. He would submit

that the respondent wife had realized the fact that the father

would be a better person to take care of the children as such

consciously she signed the document of settlement. He

would submit that the learned Court below has ignored such

deed of settlement and rejected his claim. He would further

submit that the appellant is working as an Additional

Superintendent of Police in Police Department and he has no

other issues except these two children. therefore, he would

be more suitable and sound enough to support his children in

providing education. It is further contended that though the

minors were examined in this case, but their evidence would

be immaterial. He relied on AIR 1989 Bombay 357 (Para

4) and would submit that though the minor children have

stated to stay with someone or expressed their wish that

could not be considered looking to their age and future

progress. He also placed reliance on decisions rendered in

Mrs. Elizabeth Dinshaw Versus Arvand M. Dinshaw

AIR 1987 SC Pg.3; (1993) 2 SCC Pg.6; Mausami

Moitra Ganguli Versus Jayant Ganguli (2008) 7 SCC

673 - Sumedha Nagpal Versus state of Delhi and

others (2000) 9 SCC 745) ; Mausami Moitra Ganguli

V. Jayanti Ganguli AIR 2008 SC 2262 ; Gayitri Bajaj

Vs. Jiten Bhalla) 2012 (1) CGLJ 416 .

6. Per contra, Mrs. Indira Tripathi, learned counsel for the

respondent wife would submit that the husband petitioner

played a fraud to get the settlement executed and though it

was written that the custody is given to the father but the

children remained with the mother. She would submit that

the settlement was an outcome of fraud as the documents

were got signed with an allurement to secure the prospects

of the children by offering the retiral benefits. She would

further submit that the children were examined in this case

and they expressed their desire to stay with the mother. She

further submitted that the welfare of the children would be

paramount consideration, consequently the evaluation of

evidence by the court below that the welfare of the minor

children would be much better with the mother, is correct.

She placed reliance in Tejaswini Gaud and others Vs.

Shekhar Jagdish Prasad Tewari and others (2019) 7

SCC 42 Paras 26 & 27 and Sheoli Hati V. Somnath Das

(2019) 7 SCC 490 and would submit that the supreme

welfare of the minor children better lies in the custody of

mother and the appeal therefore deserves to be dismissed.

7. We have heard learned counsel for the parties at length and

perused the entire evidence placed on record. It is trite law

that the statute namely the Guardians and wards Act, 1890

and also Mohmmadan Law make it clear that the welfare of

the children is a predominant consideration. In a matter of

this nature, particularly, when father and mother fighting

their case and both of them extending promise of the welfare

to minor children, a heavy duty is cast upon the court to

exercise its discretion judiciously bearing in mind the welfare

of the child as paramount consideration.

8. The Supreme Court in Mousami Moitra Ganguli v.

Jayanti Ganguli AIR 2008 7 SCC 673 at para 14

expressed the view that while deciding the issue as to which

parent the care and control of a child should be committed,

the first and paramount consideration is the welfare and

interest of the child and not the rights of the parents under a

statute.

9. The Supreme Court further in Tejaswini Gaud and others

Vs. Shekhar Jagdish Prasad Tewari (2019) 7 SCC 42

held that the Court while deciding the custody cases of the

child, it is not bound by the mere legal right of the parents or

guardians. It held that though the provisions of the special

statutes govern the rights of the parents or guardians, but

the welfare of the minor is the supreme Consideration in

cases concerning the custody of minor child. Therefore, the

paramount consideration should be the interest and welfare

of the child. The Supreme Court in the aforesaid judgment

reiterated the view taken in Nil Ratan Kundu Vs. Abhijit

Kundu reported in (2008) 9 SCC 413 and emphasized

that paramount consideration should be the welfare of the

child and due weight should be given to the child's ordinary

comfort, contentment, health, education, intellectual

development and favourable surroundings.

10. With respect to the oral and documentary evidence so

created by the parties in custody matters, the Supreme

Court in M.K. Hari Govindan Vs. A.R. Rajaram

reported in 36 2003 OnLine Mad 48: AIR 2003 Mad

315 held that the custody cases of child cannot be decided

on documents, oral evidence or precedents without

reference to "human touch". It held that human touch is the

primary one for the welfare of the minor since the other

materials may be created either by the parties themselves or

on the advice of counsel to suit their convenience.

11. Further in Gaurav Nagpal Vs. Sumedha Nagpal (2009)

1 SCC 42 at paras 30, 32, 37, 50 & 51 the Supreme Court

while dealing with custody of children held as under:-

"30. Sometimes, a writ of habeas corpus is sought for custody of a minor child. In such cases also, the paramount consideration which is required to be kept in view by a writ-Court is `welfare of the child'.

32. In Mc Grath, Re, (1893) 1 Ch 143 : 62 LJ Ch 208, Lindley, L.J. observed;

The dominant matter for the consideration of the Court is the welfare of the child. But the welfare of the child is not to be measured by money only nor merely physical comfort. The word `welfare' must be taken in its widest sense. The moral or religious welfare of the child must be considered as well as its physical well- being. Nor can the tie of affection be disregarded.

36. The Guardians Act, consolidates and amends the law relating to guardians and wards. Section 4 of the said Act defines "minor" as a person who has not attained the age of majority. "Guardian" means a person having the care of the

person of a minor or of his property, or of both his person and property. "Ward" is defined as a minor for whose person or property or both, there is a guardian. Chapter II (Sections 5 to 19 of Guardians Act) relates to appointment and declaration of guardians. Section 7 thereof deals with `power of the Court to make order as to guardianship' and reads as under:

"7. Power of the Court to make order as to guardianship. - (1) Where the Court is satisfied that it is for the welfare of a minor that an order should be made--

(a) appointing a guardian of his person or property, or both, or

(b) declaring a person to be such a guardian,

the Court may make an order accordingly.

(2) An order under this section shall imply the removal of any guardian who has not been appointed by will or other instrument or appointed or declared by the Court.

(3) Where a guardian has been appointed by will or other instrument or appointed or declared by the Court, an order under this section appointing or declaring another person to be guardian in his stead shall not be made until the powers of the guardian appointed or declared as aforesaid have ceased under the provisions of this Act.

50. When the court is confronted with conflicting demands made by the parents, each time it has to justify the demands. The Court has not only to look at the issue on legalistic basis, in such matters human angles are relevant for deciding those issues. The court then does not give emphasis on what the parties say, it has to exercise a jurisdiction which is aimed at the welfare of the minor. As observed recently in Mousami Moitra Ganguli's case (supra), the Court has to give due weightage to the child's ordinary contentment, health, education, intellectual development and favourable surroundings but over and above physical comforts, the moral and ethical values have also to be

noted. They are equal if not more important than the others.

51. The word `welfare' used in Section 13 of the Act has to be construed literally and must be taken in its widest sense. The moral and ethical welfare of the child must also weigh with the Court as well as its physical well being. Though the provisions of the special statutes which govern the rights of the parents or guardians may be taken into consideration, there is nothing which can stand in the way of the Court exercising its parens patriae jurisdiction arising in such cases. "

Therefore it is only the paramount consideration of the child

that would be the deciding factor.

12. In this case the appellant heavily relied upon the settlement

deed (Ex.P-3) claiming that right has been accrued in his

favour to retain the custody of minor children. On the basis

of the document, the submission is made that the other

evidence is immaterial especially in view of Ex.P-3. We are

not in agreement with the submission of the appellant that

the Court has to shut its eyes in view of the settlement deed

Ex.P-3 which gives the custody of the child to the father.

Ex.P-3 would show that it only gives visitation rights to the

mother. Can we ignore the welfare of the minor children by

accepting the submission of the appellant that oral evidence

would be excluded ? Certainly the answer would be in

negative. The children cannot be treated as a commodity in

a battle between the father and mother. It is not a case

where the provisions of sections 91 & 92 of the Indian

Evidence Act can be pressed into motion to hold that there is

a contract between the father and mother for the custody of

the child, therefore, all other oral evidence is excluded.

Further more, the mother in her deposition at para 4 has

questioned the authenticity of such settlement deed (Ex.P-3)

and it is supported by the admission made by father at para

16 that after 04.10.2016, the mother had taken away the

children and thereafter, he had not resorted to any

proceeding. Thereby it would show that the settlement deed

Ex.P-3 which was executed by the parties was not actually

acted upon. The settlement further cannot be given any

weight or conclusive finding of fact and effective review and

reconsideration would be required to give a precedent to

settlement of deed. The court cannot mimic ostrich act to

shelve the emotional concept in a custody battle of children.

13. The Supreme Court in Mousami Moitra Ganguli v.

Jayanti Ganguli AIR 2008 7 SCC 673 at Para 19

expressed similar view that while determining the question

as to which parent the care and control of a child should be

committed, the first and paramount consideration is the

welfare and interest of the child and not the rights of the

parents under a statute. Further it referred to Halsbury's

Law of England at Para 16 which reads as under:

16. In Halsbury's Law of England (Fourth Edition. Vol.

13), the law pertaining to the custody and maintenance of children has been succinctly stated in the following terms :

"809. Principles as to custody and upbringing of minors . Where in any proceedings before any Court, the custody or upbringing of minor is in question, the Court, in deciding that question, must regard the welfare of the minor as the first and paramount consideration, and must not take into consideration whether from any other point of view the claim of the father in respect of such

custody or upbringing is superior to that of the mother, or the claim of the mother is superior to that of the mother, or the claim of the mother is superior to that of the father. In relation to the custody of upbringing of a minor, a mother has the same right and authority as the law allows to a father, and the rights and authority of mother and father are equal and are exercisable by either without the other."

14. Reverting to facts of the present case, evidence on record

and the observations made by the Court below, it would

show that the wife and husband both have made wild

allegations on each other and claimed the custody of

children. The husband contended that in the month of July

2014, after raising a dispute, the wife took away both the

children from Durg after giving an information at Police

Station and came back to Bilaspur where the children were

admitted in a school. It is further stated that they were

admitted in a good school of DPS at Bhilai. Whereas the wife

has stated that during certain proceedings of custody

pending before the court below , the daughter Fiyona herself

came back to mother and she did not want to live with the

father and because of cruelty and torture meted out to the

wife, she came to Bilaspur along-with children and started

living there right from 2012 but later she joined the company

of husband for some time and returned to Bilaspur along with

children. The wife contended that she was residing in

Bilaspur since 2012 along-with her children for the reason

that she was subjected to cruelty by the husband. She

further submitted that in the month of April 2015, the

appellant/father came to Bilaspur, exerted pressure as such

before the Addl. Superintendent of Police, under pressure

both the children were taken away by the father with an

assurance that within one week, the children would be

returned. Thereafter, when the father did not return the

children, she filed habeas corpus petition wherein the order

was passed to give back the custody and on the basis of the

said order the custody was given back to the mother. The

wife further contended that she is living in a joint family

along-with her brother and other relatives who give much

attention to the care and control of the children and as such

the growth of children in such joint culture would be better

and the children would not be left alone in the hands of

servants of the appellant as he goes out for the duty. This

also appears to be logical for the reason that the first wife of

the appellant does not reside with him and the appellant

lives alone, therefore, naturally if he goes out for the official

duty, then the children would be left alone in the hands of

servants. The admission of father shows that he being in

police department, has no time to spend and he has to go

out in time, therefore, naturally if the father goes out and if

there is no female member in the house then in such a case,

the question looms large as to who will look after. The further

submission of the wife that with growing age, the minor girl

Fiyona would need certain company of the mother or any

lady and certainly she can share the company of mother,

also appears to be logical.

15. Non-applicant D.W.3 Amaan Khan has stated that her sister

was subjected to cruelty, therefore, she was forced to live

separately from the appellant since 2012. She also confirms

the fact that her sister lives in joint family wherein other

family members including the ladies reside, therefore, if the

children are left in such joint family, they would have better

mental/physical development. He also made allegation that

by using police influence and with the help of Education

Officer, the children were forced to leave school for which a

separate petition was also filed before the High Court. The

document Ex.D-17 copy of the writ petition has been filed

wherein the allegations have been made that at the behest

of the father, the children were removed from the school. In

such writ petition, the copy of order sheet dated 28.11.2018

is on record which indisputably goes to show the fact that

the children were not allowed to study in the Winners Valley

school and thereafter, they were continued by the order of

the High Court, which was at the behest of mother.

16. D.W.2 Gulam Asharaff has deposed that he used to impart

Islamic rituals to the children and he was engaged as tutory

by the non-applicant to impart the languages of Urdu and

Arabic languages to minors Arhan and Fiyona for which the

non applicant used to pay Rs.2000/- per month. Along-with

the fact, the mother, wife has contended and filed the

documents to show that she is a Tarot Card Reader and is

running a shop in a Complex whereby she used to earn

Rs.50,000/-. The income tax return (Ex.D-19) of the

assessment year 2018-19 is also placed on record to prove

the fact that her gross annual income was Rs.5,00,888/-.

Therefore the documents would show that the mother has

also reasonable income.

17. Now the most important fact to be noted in this case is that

both the children i.e., Baby Feona and Arhan Khan were

examined as D.W.4 and DW.5 in this Case. Reading of their

statements would show that both have expressed that they

love mother and wanted to stay with her. Baby Fiyona

stated that she loves her brother and mother and she goes

her father's house on Saturdays and Sundays. She admitted

the fact that all the amenities are available in the house of

the father. However, she stated that the mother provides all

the favorite food and takes them on tour to favourite places

of their interest. She also stated that whatever things she

needs that are purchased and given by the mother. She

stated that her mother supports her in doing the home work

after schooling hours. She further stated that they are nicely

maintained by the mother, therefore, they want to live with

her. In cross examination, she admitted the fact that they

had visited Kashmir along with the father and though her

mother had not taken to Kashmir and other places, but she

wanted to stay with the mother.

18. Likewise D.W.5 the son Arhan stated that he wants to stay

with mother and does not want to stay with father. He

further stated that the father used to abuse the mother but

mother never used to abuse the father, therefore, he wants

to stay with mother. He also stated that on Saturdays and

Sundays they used to go to father's house and the mother

also provide them all amenities and comforts. Both the

children have stated that the father had detached them from

school and on a suggestion given to them that they were not

detached from school by the father, it was denied. In the

further examination of Arhan, when the child was suggested

the fact that he was tutored by the mother to say that the

father has abused, he denied the same. He also denied the

fact that he has made statement at the instance of the

mother.

19. Under the Principles of Mohmmadan Law, 9th Edition,

by M. Hidayatullah & Arshad Hidayatullah

Section/Rule 351 governs the guardianship of persons and

property and its appointment. It purports appointing or

declaring the guardian of a minor, the Court shall, subject to

the provisions of this section, be guided by what would be

best for the welfare of the minor, the court shall have regard

to the age, sex and religion of the minor, the character and

capacity of the proposed guardian and his nearness of kin to

the minor, the wishes and any existing or previous relations

of the proposed guardian with the minor or his property.

Further "if the minor is old enough to form an intelligent

preference, the Court may consider that preference".

20. Under the principles of Muslim law, the mother is entitled to

the custody of her male child until he has completed the age

of seven years and of her female child until she has attained

the age of puberty i.e., 14 years. However, the principle of

law which is well established is that in a proceeding for

appointment of guardian, it is not the guardianship of minor

which is of importance, but the welfare of the minor has to

be taken into consideration. If there is a conflict between

the personal law to which the minor is subject and the

consideration of the minors' welfare, the latter must prevail.

Likewise where the provisions of law are in conflict with the

provisions of Guardians and Wards Act, the latter will prevail

over the former.

21. In the instant case, both the minors, who were aged about 10

years at the time of recording statements, were put to cross

examination and various suggestions were given. The

answers which were given by them are logical and appears

to be correct. Meaning thereby it would show that they are

old enough to form an intelligent preference to be in the

custody of the mother which they have chosen. The nature

of cross examination and the answers which were given by

twin children would show that there was consistency in their

statements wherein they have categorically expressed their

view and chose to stay with the mother. When the witnesses

are intelligent enough to have their preference, evaluating

their evidence, this court will not sit over their opinion and

preference. The custody battle of children requires a human

touch apart from the statutory obligation, therefore, we are

of the view that the children's wish and will would prevail

over. All other material is subjected to conflicting evidence

of mother and father which cannot hold sway in it's entirety.

22. Having thus given our thoughtful consideration to the facts

and material evidence of the present case, we are of the

opinion that proper and paramount welfare of children lies

with the custody of the respondent-mother and therefore,

the finding recorded by the learned court below to keep the

custody of the minor children with the mother does not

warrant any interference.

23. Now coming to the visitation rights of the father in respect of

the children who are in custody of mother, reading of the

impugned judgment would show that no specific direction

with particular rights and guidelines regulating the visiting

arrangements was given by the learned Court below. The

Apex Court in Yashita Sahu Vs. State of Rajasthan

(2020) 3 SCC 67 held that even after the custody was

given to one parent, the other parent must have sufficient

visitation rights to ensure that the child keeps in touch with

the other parent and does not lose social, physical and

psychological contact with any one of the two parents. It is

only in extreme circumstances that one parent should be

denied contact with the child. The evidence in this case does

not show any extreme circumstances whereby one parent for

all practical purposes can be denied to meet the child. The

evidence has come on record that even though the mother

and father are living separately and the children are staying

with the mother, yet the father often uses to meet the

children.

24. The Supreme Court in Yashita Sahu (Supra) further observed

that the concept of "visitation rights" is not fully developed

in India. Most courts while granting custody to one spouse

do not pass any orders granting visitation rights to the other

spouse. It held that the child has a human right to have the

love and affection of both the parents and Courts must pass

orders ensuring that the children are not totally deprived of

the love, affection and company of one of their parents.

25. In addition to "visitation rights" the court observed that the

"contract rights" is also important for the development of the

child specially in cases were both the parents live in different

places the concept of contact rights in the modern age would

be contact by telephone, e-mail or in fact we feel the best

system of contact, if available, between the parties should be

video calling. It observed that with the increasing availability

of internet, and the Courts dealing with the issue of custody

of child must ensure the parent who is denied the custody of

the children should be able to talk to his/her child as often as

possible. It held that the communication will help in

maintaining and improving the bond between the children

and the parent who is denied the custody. If that bond is

maintained, the children will have no difficult in moving from

one home to another during vacation or holidays. The

purpose was held that the court cannot provide one happy

home with two parents to the child then let the child have

the benefit of two happy homes with one parent each.

26. In a recent decision rendered in Ritika Sharan Vs. Sujoy

Ghosh, 2020 SCC OnLine SC 878 the Supreme Court

held that a balance has to be drawn so as to ensure that in a

situation where the parents are in a conflict, the child has a

sense of security. The interests of the child are best served

by ensuring that both the parents have a presence in his/her

upbringing. Therefore, following the principles laid down in

Yashita Sahu Vs. State of Rajasthan (supra) and Ritika

Sharan Vs. Sujoy Ghosh (supra), we hereby order to facilitate

the grant of visitation and contact rights to the father. The

following arrangements shall be made by both the appellant

and respondent as father and mother :

(i) The appellant/father would be able to engage with the children on a suitable video conferencing platform for one hour every Saturday and Sunday and 5 - 10 minutes on other days.

(ii) Both the appellant/father and the respondent mother in order to facilitate the video conferencing

between them shall procure smart phones which would facilitate the inter-se video calling.

(iii) During long holidays/vacation covering more than 2 weeks the children will be allowed to be in the company of the father for a period of 7 days and the mother, if so desires, can also accompany them. The period shall be fixed by the father after due intimation to the mother and she will permit the children to go with the father for the aforesaid period and the mother, if so desires, may also accompany them.

(iv) Every month preferably on Saturday or Sunday the mother shall allow the children to visit his father or father may take the children in his company and leave them back in the evening of such day.

(v) During festivals like Idd, Ramjan etc., the father may join the company of the children at the place of the mother and spend the festival days with the children along with the mother.

27. With the aforesaid observations/direction, the appeal is

disposed of.

               Sd/-                                         Sd/-
          GOUTAM BHADURI                                RAJANI DUBEY
              JUDGE                                        JUDGE




Rao





                    HEAD-NOTES

In respect of custody of children claimed by mother and father who are living separately, if there is a conflict between the personal law to which the minor is subject and the consideration of the minor's welfare, the latter must prevail.

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