The Calcutta High Court was dealing with a Public Interest Litigation that had been filed for framing of a guideline concerning children who are disassociated with the parents.
The basis for the PIL was that no visitation had been permitted despite an order passed by the Civil Court during the lockdown due to pandemic and the applications for urgent hearing were kept in suspended animation without being addressed by the concerned Court.
Mr. Sen, Advocate appearing for the petitioner submitted that an attempt to approach the Government instrumentality for interacting with the child had gone in vain as the portal was not responding.
High Court’s observations:
The bench stated that,
“We are not oblivion of the fact that the child is the worst sufferer to the separation of the parents and falling off the nuptial tie. The parents may have fallen apart because of several factors viz. lack of sensitivity, lack of communication, ego and non-convergence to the issues, which appear to be a normal wear and tear of a conjugal life. The parent has a statutory as well as a social right to interact with the child and concern for his wellbeing. It is no gainsaying that the visitation/interaction with the child may sometime yield a positive result as the child can act as a bridge between the warring parents and may fill up the gaps to restore the institutional chord. It is no doubt true that the welfare of the child is paramount and visitation is one of the integral parts of restoring the broken thread between the litigating parents.”
However, the bench noted that the current pandemic has caused a distance to be maintained, as the virus Covid-19 is contagious. This has led to the restrictions on the movement of the vehicles and other means of commutation, which impedes visitation by physical interaction.
The High Court remarked that,
“The technology has been developed where the virtual interaction/visitation can also be taken as a part of the right of visitation. The society changes with the advancement of technology and the medium of education, so the concept of social justice, which is dynamic and not static.”
The Court stated that “The Court cannot laid of the application filed by either of the parents for virtual visitation but should have activated the process as the welfare of the child is of paramount consideration. Even after observing the same, the purpose of litigation as filed, cannot be used as a tool for ventilating the grievance, which is of a personal nature as the adequate remedies are provided in law.”
Regarding the allegation of lack of response by the Government when parent wished to interact with the child in custody of the other parent, the bench affirmed that that the remedy does lie in law and the approach can be made by the aggrieved parent.
High Court’s directions:
On an optimistic note, the High Court assured that the concerned Judge would be mindful of the fact that the child being vulnerable and needs constant support both mentally and physically and the welfare being the paramount consideration, and would take up the issue as and when raised on an urgent basis. The bench disposed of the writ-petition.
Bench: Justice Soumen Sen, Justice Harish Tandon
Case Title: Hriday Nest of Family Harmony v. The State of West Bengal & Ors.
Case Details: CAN 3092 of 2020 in WP 5399 (W) of 2020
Counsel for Petitioner: Adv. Sakya Sen, Adv. Rohit Banerjee
Counsel for Respondent: Adv. General Kishore Dutta, Adv. Srijib Chakraborty
Read the Order:
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