Sanchayita Lahkar

The High Court of Judicature at Madras Single Bench of Justice M. Jothiraman modified a lower court’s order on visitation rights between estranged parents, allowing the father to meet his eight-year-old daughter twice a month at the Child Care Centre in Krishnagiri instead of Chennai. The Court observed that while determining visitation arrangements, the child’s education and her physical, moral, and emotional growth must remain unaffected. Justice Jothiraman held that in matters of parental access, the child’s welfare is the guiding consideration, and visitation must be structured so as not to disturb the child’s overall development.

The petitioner, the wife, filed a petition before the Family Court seeking dissolution of marriage under Section 13(1)(i-a) of the Hindu Marriage Act, 1955, alleging cruelty, along with a request for permanent alimony under Section 25 of the Act. During the pendency of the proceedings, the respondent, the husband, filed an interlocutory application under Section 26 of the same Act, seeking visitation rights to meet his minor daughter, aged about seven years, every weekend until disposal of the main petition. The Family Court partly allowed the request, permitting the father to visit the child twice a month at the Child Care Centre attached to the Family Court in Chennai.

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Aggrieved by this direction, the wife approached the High Court, stating that she was residing in Hosur and working in Bengaluru while caring for the minor child. She contended that travelling to Chennai twice a month caused physical and emotional strain on the child and financial hardship for her, particularly as the husband had not contributed to the child’s maintenance despite a pending petition for the same. She further submitted that visitation could be arranged at Hosur to avoid inconvenience.

The husband opposed the request, stating that he feared for his safety if he visited Hosur due to alleged threats from the wife’s family. He proposed Vellore as a neutral location. The Court examined the submissions, relevant statutory provisions, and precedents, including the Supreme Court’s ruling in Yashita Sahu v. State of Rajasthan, reiterating that the welfare of the child is the primary consideration in determining visitation rights.

The Court recorded that “the biological parents’ affection is to see their child and so also the child has an affection over both of them, namely father and mother.” The Court noted that when custody is entrusted to one parent, the child’s wellbeing should be the foremost consideration while granting visitation rights.

The Court stated that “the welfare of the child alone is of paramount consideration while dealing with cases pertaining to grant of visitation rights.” It held that the respondent’s entitlement to visitation cannot compromise the child’s schooling, physical comfort, or emotional stability. “No doubt the respondent/father is entitled for visitation rights, but at the same time, it should not disrupt the child’s schooling, physical, moral, emotional and intellectual development.” The Court stated that the paramount consideration in such cases must be the best interests of the child, not the convenience of the parents.

Referring to Article 51-A(k) of the Constitution of India, the Court recalled that every parent or guardian has a duty “to provide opportunities for education to his child or, as the case may be, ward between the age of six and fourteen years.” It observed that the child’s welfare encompasses not just educational needs but her overall emotional and psychological well-being.

In reinforcing this principle, the Court cited the Supreme Court’s decision in Yashita Sahu v. State of Rajasthan [(2020) 3 SCC 67], quoting paragraph 22: “A child, especially a child of tender years, requires 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 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.” The judgment further noted that “even if the custody is 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.”

Justice Jothiraman recorded that the principle laid down in Yashita Sahu guides the courts to balance parental rights with the paramount interest of the child. “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.” However, the Judge clarified that such visitation must not result in unreasonable hardship or emotional distress to the minor child.

The Court noted that in this case, the eight-year-old minor girl’s best interests would not be served if she were required to travel from Hosur to Chennai for every visitation. Justice Jothiraman observed that “considering the age of the child, physical and psychological hardship she would face, if she is permitted to travel from Hosur to Chennai in order to facilitate the respondent’s visitation rights... this Court is inclined to modify the condition imposed by the Court below.” The Court found it equitable to fix visitation at a location that balances both the father’s rights and the child’s welfare.

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Justice Jothiraman 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, aged 8 years, on 1st Saturday 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.”

The Court recorded that the modification would serve the dual purpose of maintaining the father’s right to meet his daughter while ensuring the minor’s comfort and welfare. It noted that “in all other aspects, the order of the Court below remains unaltered.”

The Civil Revision Petition was accordingly disposed of. The Court ordered that no costs were to be awarded and that the connected miscellaneous petitions stood closed.

Advocates Representing the Parties:
For the Petitioner: M/s. K. Sumathi
For the Respondent: Mr. K. Chandru

Case Title: XX v YY
Case Number: CRP No. 3407 of 2023
Bench: Justice M. Jothiraman