[Cites 6, Cited by 0]
Gauhati High Court
Monmee Senapati vs Rohit Dutta Medhi on 9 December, 2025
Page No.# 1/14
GAHC010237502025
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THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : I.A.(Civil)/3618/2025
MONMEE SENAPATI
W/O SRI ROHIT DUTTA MEDHI PRESENTLY RESIDING AT HOUSE NO 926
10TH BYE LANE GREEN LAND PATH DR ZAKIR HUSSIAN PATH SORU
MOTORIA UNDER DISPUR PS GUWAHATI 36 ASSAM
VERSUS
ROHIT DUTTA MEDHI
/O SRI MONTOSH DUTTA MEDHI PERMANENT R/O HOUE NO 106
HATIGAON BHETAPARA ROAD HATIGAON PS HATIGAON GUWAHATI 38
ASSAM PRESENTLY RESIDING AT FLAT 1803 TOWER B IITL NIMBUS HYDE
PARK GH 03 SECTOR 78 NOIDA GAUTAM BUDH NAGAR UTTAR PRADESH
Advocate for the Petitioner : DR. N BAROOAH,
Advocate for the Respondent : ,
Linked Case : CRP(IO)/231/2025
MONMEE SENAPATI
W/O SRI ROHIT DUTTA MEDHI PRESENTLY RESIDING AT HOUSE NO 926
10TH BYE LANE GREEN LAND PATH DR ZAKIR HUSSIAN PATH SORU
MOTORIA UNDER DISPUR PS GUWAHATI 36 ASSAM
VERSUS
SRI ROHIT DUTTA MEDHI
S/O SRI MONTOSH DUTTA MEDHI PERMANENT R/O HOUE NO 106
HATIGAON BHETAPARA ROAD HATIGAON PS HATIGAON GUWAHATI 38
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ASSAM PRESENTLY RESIDING AT FLAT 1803 TOWER B IITL NIMBUS HYDE
PARK GH 03 SECTOR 78 NOIDA GAUTAM BUDH NAGAR UTTAR PRADESH
------------
Advocate for : DR. N BAROOAH
Advocate for : J DAS appearing for SRI ROHIT DUTTA MEDHI
BEFORE
HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA
ORDER
DATE : 09.12.2025
1. Heard Dr. N. Barooah, the learned counsel for the applicant. Also
heard Mr. P. Choudhury, the learned counsel for the respondent.
2. The applicant Smt. Monmee Senapati and the respondent Shri Rohit
Dutta Medhi had also appeared in-person before this Court and an
interaction was held in the chamber on 05.12.2025 in pursuant to the
order dated 24.11.2025, whereby this Court made an effort for
settlement under Order XXXII A Rule 3 of the Code of Civil
Procedure, 1908.
3. This Interlocutory Application has been filed by the applicant, namely,
Smti Monmee Senapati, in connection with CRP (IO)/231/2025,
praying for her visitation rights by allowing her son Master Kairaav
Dutta Medhi to stay with her for at least 15 days during the ensuing
school winter vacation commencing from 20.12.2025 till 10.01.2026.
4. It is pertinent to mention herein that the connected Civil Revision
Petition No. (IO)/231/2025 has been filed by the present applicant
under Article 227 of the Constitution of India read with Section 151
of the Code of Civil Procedure, 1908, impugning the Order dated
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16.06.2025 passed in Misc. (G) Case No.192/2024 by the learned
Principal Judge, Family Court No. III, Kamrup(M), Guwahati whereby
the prayer for allowing her elder son Master Kairaav Dutta Medhi to
spend at least 15 days, by staying with her, during the summer
vacation (from 26.05.2025 to 30.06.2025) was rejected.
5. The applicant and the respondent are wife and husband in
relationship, however, the respondent husband has filed a divorce
suit against the applicant wife under Section 27 (D) of the Special
Marriage Act, 1954 in the Court of learned Principal Judge, Family
Court, Gautam Budh Nagar, Noida, Uttar Pradesh along with an
application under Section 38 of the Special Marriage Act, 1954
seeking custody of their minor elder son Master Kairaav Dutta Medhi.
6. The aforesaid divorce suit was transferred by the Apex Court to the
Court of the learned Principal Judge, Family Court No. III, Kamrup
(M) on the basis of a Transfer Petition filed by the present applicant
before the Apex Court. Upon transfer of the said case to the Court of
the learned Principal Judge, Family Court No. III, Kamrup(M)
Guwahati, the divorce suit was re-numbered as FC (Civil) Case No.
1307/2024 and the custody matter was re-numbered as
Misc. (G)Case No. 192/2024.
7. It is pertinent to mention herein that before transfer of the aforesaid
case to the Court of the learned Principal Judge, Family Court No. III,
Kamrup(M) Guwahati, the Court of learned Principal Judge, Family
Court, Gautam Budh Nagar, Noida, by its order dated 19.04.2024,
had directed to continue the interim custody of Master Kairaav Dutta
Medhi with the respondent (his father) till 13.05.2024. On the next
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date, the said interim custody was extended further. The custody of
Master Kairaav Dutta Medhi, the son of the applicant, is presently
with the respondent.
8. Upon transfer of the aforementioned matters to the Court of the
learned Principal Judge, Family Court No. III, Kamrup (M), the
present applicant prayed for visitation rights by allowing her to keep
her minor elder son with her for at least 15 days during the summer
vacation which was from 26.05.2025 to 30.06.2025.
9. However, the respondent objected to the said prayer on the ground
that his minor elder son Master Kairaav Dutta Medhi, who is around
8 years of age, is not in the habit of staying away from him. The
respondent also took the plea that it is not in the best interest of their
son to allow him to stay with the mother when respondent himself is
not in the vicinity. In the written objection filed by the respondent,
he also took plea that when order of interim custody granted by the
Family Court, Noida was in force, the applicant, on 12.12.2024, tried
to forcibly take away the minor son from school and due to the said
incident, his minor elder son had undergone mental trauma and is
reluctant to stay with his mother.
10. Though, in the Civil Revision Petition filed by the applicant as well as
in the written objection filed by the respondent, several
allegations and counter allegations were made against each other by
both parties, however, during hearing, the learned counsel for the
respondent as well as during the interaction with the
respondent-in-person, he also indicated that he is not totally
averse to visitation rights of the mother and he used to bring his
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minor elder son whenever he goes to Guwahati to attend the cases
pending between him and his wife. He has further stated that during
such meetings, the applicant usually meets her minor elder son and
the respondent also get an opportunity of meeting and interacting
with his younger son who is with the applicant and who is about two
years of age only. The learned counsel for the respondent has also
submitted that as the respondent works in a private company at
Delhi, it may not be possible on his part to get frequent long leaves
to come to Guwahati along with his child to facilitate the visitation
rights of the applicant by allowing his child to stay overnight with the
applicant. He submits that it may also not be in the best interest of
the child to do so.
11. On the other hand, the learned counsel for the applicant as well as
the applicant herself stated that she has not been able to meet her
minor elder son and spend adequate time with him for the last 23
months except for one day i.e., 20.03.2025 when the applicant was
allowed to meet the son by the Family Court. It is also submitted by
learned counsel for the applicant that the Trial Court had erred by
denying the visitation rights to the applicant even during long school
vacation of the child as it has deprived him of his mother's love which
is not in the best interests of the child.
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12. I have considered the submissions made by the learned counsel for
the applicant as well as that of the respondent. I have also considered
the contentions made by the applicant as well as the respondent
appearing in-person before this Court.
13. It appears that the order which has been impugned in the connected
Civil Revision Petition (IO) No.231/2025 was in respect of the
visitation rights of the applicant to meet her son, Master Kairaav
Dutta Medhi for the period during the school summer vacation in the
month of May-June 2025, which has already lapsed. Hence, the relief
for which the impugned order was put to challenge in the connected
Civil Revision Petition (IO) No.231/2025 has become infructuous,
however, the question as to whether the learned Principal Judge,
Family Court No. III, Kamrup (M) was correct in denying the visitation
rights to the applicant even during long school vacation of her minor
elder son was right or otherwise is required to be decided, therefore,
this Court is inclined to examine the matter and consider the same
while taking up the instant Interlocutory Application where the
visitation rights of the applicant for meeting her minor elder son
during the ensuing winter vacation in the month of December 2025-
January 2026 has been prayed for.
14. After going through the materials on record, it appears that the
applicant was staying at Noida with her husband, i.e., the respondent
and two sons were born out of the said wedlock. However, due to
matrimonial dispute between the parties, the applicant had to leave
her matrimonial residence, at Noida, on 17.12.2023, along with her
minor younger son. Her contention is that she was not allowed to
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carry her minor elder son by the respondent, therefore, he had to be
left with his father, i.e., the respondent. Presently, the minor elder
son, Master Kairaav Dutta Medhi is in custody of his father on the
strength of an interim order passed by the Family Court, Noida to
that effect.
15. The Trial Court, by the impugned order, had rejected the prayer for
allowing the visitation rights made by the applicant for allowing her
minor elder son to stay with her at least for a period of 15 days during
summer vacation. The rejection order was passed, by the Trial Court,
mainly on the ground that it may disturb the scheduled tuitions and
other extra-curricular activities of the child during the summer
vacation and that the welfare of the child does not require such
visitation rights under the facts and circumstances of the case.
16. Though, the summer vacation during which the visitation rights were
sought for by the applicant before the Trial Court have already lapsed,
however, again a long winter vacations are forthcoming, thus, the
question to be decided here is as to whether during the pendency of
the custody application under Section 38 of the Special Marriage Act,
1954, before the Trial Court, the visitation rights sought for by the
applicant may be granted or not.
17. It is well settled proposition of law that while considering an
application for visitation rights by any of the parents, during
pendency of litigation between the parents over the question of
custody of the minor child, the paramount consideration is the
welfare of the child. In this regard, the Apex Court in the case of
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"Yashita Sahu Vs. State of Rajasthan and Others" reported in
(2020) 3 SCC 67 has observed as follows:
"20. It is well settled law by a catena of judgments
that while deciding matters of custody of a child,
primary and paramount consideration is welfare of
the child. If welfare of the child so demands then
technical objections cannot come in the way. How-
ever, while deciding the welfare of the child, it is
not the view of one spouse alone which has to be
taken into consideration. The courts should decide
the issue of custody only on the basis of what is in
the best interest of the child.
21. The child is the victim in custody battles. In
this fight of egos and increasing acrimonious bat-
tles and litigations between two spouses, our ex-
perience shows that more often than not, the par-
ents who otherwise love their child, present a pic-
ture as if the other spouse is a villain and he or she
alone is entitled to the custody of the child. The
court must therefore be very wary of what is said
by each of the spouses.
22. A child, especially a child of tender years re-
quires the love, affection, company, protection of
both parents. This is not only the requirement of
the child but is his/her basic human right. Just be-
cause 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. A child is not an inanimate object which
can be tossed from one parent to the other. Every
separation, every reunion may have a traumatic
and psychosomatic impact on the child. Therefore,
it is to be ensured that the court weighs each and
every circumstance very carefully before deciding
how and in what manner the custody of the child
should be shared between both the parents. Even
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if the custody is given to one parent, the other par-
ent must have sufficient visitation rights to ensure
that the child keeps in touch with the other parent
and does not lose social, physical and psychologi-
cal contact with any one of the two parents. It is
only in extreme circumstances that one parent
should be denied contact with the child. Reasons
must be assigned if one parent is to be denied any
visitation rights or contact with the child. Courts
dealing with the custody matters must while de-
ciding issues of custody clearly define the nature,
manner and specifics of the visitation rights.
23. The concept of visitation rights is not fully de-
veloped in India. Most courts while granting cus-
tody to one spouse do not pass any orders grant-
ing visitation rights to the other spouse. As ob-
served earlier, a child has a human right to have
the love and affection of both the parents and
courts must pass orders ensuring that the child is
not totally deprived of the love, affection and com-
pany of one of her/his parents.
24. Normally, if the parents are living in the same
town or area, the spouse who has not been
granted custody is given visitation rights over
weekends only. In case the spouses are living at a
distance from each other, it may not be feasible or
in the interest of the child to create impediments
in the education of the child by frequent breaks
and, in such cases the visitation rights must be
given over long weekends, breaks and holidays. In
cases like the present one, where the parents are
in two different continents, effort should be made
to give maximum visitation rights to the parent
who is denied custody.
25. In addition to "visitation rights", "contact
rights" are also important for development of the
child specially in cases where both parents live in
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different States or countries. The concept of con-
tact rights in the modern age would be contact by
telephone, e-mail or in fact, we feel the best sys-
tem of contact, if available between the parties
should be video calling. With the increasing avail-
ability of internet, video calling is now very com-
mon and courts dealing with the issue of custody
of children must ensure that the parent who is de-
nied custody of the child should be able to talk to
her/his child as often as possible. Unless there are
special circumstances to take a different view, the
parent who is denied custody of the child should
have the right to talk to his/her child for 5-10
minutes every day. This will help in maintaining
and improving the bond between the child and the
parent who is denied custody. If that bond is main-
tained, the child will have no difficulty in moving
from one home to another during vacations or hol-
idays. The purpose of this is, if we 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."
18. In the instant case, the applicant, who is the mother of Master
Kairaav Dutta Medhi, has not been able to meet her minor elder son
properly for almost 23 months, except for one occasion when such a
visitation right was granted by the Family Court on 20.03.2025 for a
few hours. There cannot be a dispute regarding the proposition that
the minor elder son of the parties, Master Kairaav Dutta Medhi, has
a right to have love and affection of both the parents and denial of
the same would not be in the best interest of the child.
19. In the instant case, as the child i.e., Master Kairaav Dutta Medhi is
pursuing his studies at Delhi, it may not be proper to grant visitation
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right with frequent overnight stay with her mother, who stays at
Guwahati, as it would affect his studies. However, same can be done
during long school vacations, which will not affect his studies and
would not also deprive him of his mother's love and affection as well
as an opportunity of meeting his younger sibling, who stays with
mother, for a longer period of time.
20. In the instant case, the separation of mother from her child was a
consequence of matrimonial disputes between the parents, however,
keeping the child away from mother on one or other pretext and
thereby denying him of his mother's love and affection can never be
regarded as a step in the best interest and welfare of the child.
Hence, this Court is of the considered opinion that the Trial Court had
erred in denying the proper visitation rights to the applicant, even
during long school vacation of the child.
21. The Apex Court, in the case of Yashita Sahu Vs. State of
Rajasthan (Supra) has also observed that where the parents live
at distant places, the effort should be made to give maximum
visitation rights to the parent, who is not having the custody of the
child.
22. As the application under Section 38 of the Special Manage Act, 1954,
regarding custody of Master Kairaav Dutta Medhi, is still pending
before the Family Court and, in the interim, the custody of the child
is with the father (respondent), the applicant, who is the mother of
the child and who does not have the interim custody at present
should be given maximum visitation rights at least during long school
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vacation of the child, which would be in the best interest and welfare
of the child.
23. In view of the discussions made in the foregoing paragraphs and
reasons stated therein, this Interlocutory Application is allowed with
the following directions:
(i) During the pendency of the custody matter under Section 38 of
the Special Marriage Act, 1954, between the parties, before the
learned Principal Judge, Family Court No. III, Kamrup (M), Gu-
wahati, the applicant shall have visitation rights to meet her mi-
nor elder son Master Kairaav Dutta Medhi, who is presently in
the interim custody of his father i.e., the respondent.
(ii) If the decision-making process in the custody application pend-
ing before the Family Court takes a longer time, the terms and
conditions of such visitation rights of the applicant shall be as
decided by the learned Principal Judge, Family Court No. III,
Kamrup(M) from time to time.
(iii) Even while finally deciding the custody application pending be-
fore it, the learned Principal Judge, Family Court No. III,
Kamrup(M) shall consider the aspect of the visitation rights and
include in the final order stipulation regarding visitation rights
of the parent, who would not be ultimately getting custody of
the child.
(iv) During the forthcoming school winter vacation of the child from
20th December, 2025 till 10th of January, 2026, the applicant shall
have the visitation rights by keeping her minor elder son with
her for at least seven days during such winter vacation.
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(v) As the child is presently in the interim custody of his father i.e.,
the respondent, he shall decide as to which seven days, he may
be able to allow the child to stay with his mother during the
ensuing school winter vacation.
(vi) The respondent shall give prior intimation to the applicant about
the date (first day of the seven days) on which he may be able
to handover Master Kairaav Dutta Medhi to his mother. There-
after, the respondent shall hand over the child to the applicant
on such date and again take him back after seven days of the
said date. If the respondent so wishes, he may also allow his
minor elder son to stay with his mother for a few more days.
However, same is left entirely at the discretion of the respond-
ent.
(vii) During this period, the respondent shall have all rights to con-
tact his minor elder son or meet him as and when required.
During the said period of the seven days, the applicant shall
facilitate meeting between the father and the child keeping in
view the welfare and well-being of the child.
(viii) During the period of seven days when the child will be with the
applicant, the Probation Officer-cum-District Child Protection Of-
ficer, Kamrup (M) shall visit the residence of the applicant and
thereafter, submit a report as regards whether the minor elder
son of the applicant, Master Kairaav Dutta Medhi is comfortable
during his stay with his mother during the said period of seven
days. The said report shall be submitted before the learned Prin-
cipal Judge, Family Court No. III, Kamrup (M).
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(ix) Let a copy of this order be furnished to the learned counsel for
both sides for compliance by the parties.
(x) Let also a copy of this order be sent to the Probation Officer-
cum-District Child Protection Officer, Kamrup (M) for compli-
ance.
(xi) Let also a copy of this order be sent to the learned Principal
Judge, Family Court No. III, Kamrup (M).
JUDGE
Comparing Assistant
