Orissa High Court: In a civil writ petition by a woman against Trial Court’s decision granting visitation rights to the father, the Single Judge Bench of G. Satapathy, J. prioritising the child’s emotional security and best interests, upheld the Trial Court’s decision.
Background
The petitioner wife approached the Court under Article 226 against Trial Court’s decision, whereby, the Trial Court held that- The father is entitled to visitation right to his son once in a fortnight preferably on a holiday as per the date, time, place fixed by the husband under intimation to this Court. The father shall have assessed to the child on his birthday, on the special festive occasion also.
The wife challenged the impugned order granting visitation right of the son to the father on the ground that the husband had not paid the interim maintenance so also, the litigation expenses to her and the minor child was deserted by the husband when he was hardly one month old and the minor child is in her custody since 17-09-2012 and in the meantime, he had already grown up and the father had never visited the son nor had taken care of the child or made arrangement for his survival.
Analysis and Decision on Father’s Visitation Rights
The Court noted that the husband had filed MAT Case against the wife for seeking divorce and custody of the child. The Court said that be that as it may, the visitation right is an important right of either of the parents to see the children born out of their wedlock. It is not in dispute that the father in this case had no access to the child, but he has definitely right to see his son provided the same is in the paramount interest of the child, who has right to the affection of both of his parents.
It is also, equally important that the child is entitled to love and affection, protection and guidance of both the parents and their family. While deciding any matters relating to the
custody or visitation right of the child, the paramount consideration is the welfare of the child and if the welfare of the child so demands, the technical objection cannot come in the way, but while deciding the welfare of the child, it is not the view of one spouse alone which has to be taken into consideration, however, the Court is required to decide the issue on the basis of what is in the best interest of the child.
The Court observed that the child is always the victim in the custody battles and in the fight of egos and acrimonies between two spouses, but the childhood of such child is the worse sufferer, and such childhood is spoiled due to the alter egos of the spouses.
Adding to this, the Court said that the child especially of tender years requires love, affection company, protection and guidance of both the parents and these are not only the requirement of the child, but also are his/her basic human rights and need. The child is not an inanimate object which can be tossed from one parent to other.
The Court opined that excepting the extreme circumstance, one parent should not be denied contacting or visit his/her child, and the cogent reasons must be assigned while refusing visitation right of either of the spouses to their child.
Wife’s contention was termed as insignificant because the visitation right of the child is considered on a different pedestal of welfare of the child which is paramount in considering the application for visitation right.
The paramount consideration being the welfare of the minor child and prioritising the child’s need for love and affection from his parents and there being no tangible material or extreme circumstance to refuse the father from his legitimate right to visit his son, the Court upheld the Trial Court’s decision of granting visitation right of the child to the father.
[X v. Y, 2025 SCC OnLine Ori 1928, Decided on: 14-05-2025]
