While very strongly lamenting, lampooning and lambasting the fast eroding family system in our country, it would be pivotal to note that the Madras High Court which is one of the oldest High Courts in India in a most learned, laudable, landmark, logical and latest judgment titled A Aashifa Begum vs Khader Beevi in Original Side Appeal No.108 of 2023 and C.M.P.No.12727 of 2023 that was pronounced as recently as on March 5, 2024 has underscored that Courts have to safeguard the family system in the country which is fast eroding. This was clearly held so by the Court while dealing with a case pertaining to the granting of the visitation rights to the grandparents of a minor girl.
We need to definitely note here that the Bench in its judgment minced just no words to hold unequivocally that:
In custody or guardianship matters, the courts have to consider the welfare of the minor child, which is a paramount consideration and to ensure and safeguard family system in the country, which is fast eroding and to ensure that there is overall development of the minor child and there is proper environment and upbringing of the child and therefore, the best interests of the child are taken care. The Bench observed that after considering the facts it was inclined to modify the order of the Family Court granting visitation rights to the grandparents by restricting it to once a month (first Saturday) for four hours instead of twice a month (two hours each).
At the very outset, this remarkable, robust, rational and recent judgment authored by Hon'ble Mr Justice R Mahadevan for a Division Bench of the Madras High Court comprising of himself and also Hon'ble Mr Justice Mohammed Shaffiq sets the ball in motion by first and foremost putting forth in para 1 that:
The Original Side Appeal has been instituted against the order and decretal order dated 06.06.2023 passed by the learned Judge in A.No.2690 of 2023 in O.P.No.188 of 2023.
To put things in perspective, the Division Bench envisages in para 2 that:
The respondents herein, who are the in-laws of the appellant, has preferred a petition in O.P. No. 188 of 2023 for grant of permanent custody and appointing them as guardian of their minor grandchild by name Nuha Aalima born on 03.09.2021. According to the respondents, their only son viz., Abdul Hameed married the appellant on 02.09.2020 and out of the said wedlock, a female child by name, A.Nuha Aalima was born on 03.09.2021. While so, the son of the respondents died on 21.10.2022. Thereafter, dispute arose between the parties, which resulted in registration of the criminal cases against them. During the course of enquiry, an agreement was entered into between the parties on 03.11.2022 and as per the same, the custody of the child was given to the appellant and the visitation rights to the respondents herein. Contrary to the same, the appellant refused to permit the respondents to have their visitation rights of the minor grandchild. Feeling aggrieved, the respondents preferred the original petition.
As we see, the Division Bench discloses in para 3 that:
Pending the aforesaid original petition, the respondents filed certain applications, the details of which read as follows:
- No. 2690 of 2023 - grant of visitation rights of their minor grandchild;
- No. 2691 of 2023 - grant of interim custody of their minor grandchild; and
- No. 2692 of 2023 - direct the appellant to comply with the terms and conditions of the agreement dated 03.11.2022 in respect of child visitation.
As it turned out, the Division Bench enunciates in para 4 that:
On 06.06.2023, when all these applications were taken up for consideration, the learned Judge has passed the following order:
- Various applications have been filed by the petitioners who are seeking custody of the minor child being their granddaughter.
- The minor child was born to their deceased son and that the minor child is aged about 1 year & 9 months. They had also sought visitation rights to meet their granddaughter.
- Learned counsel appearing on behalf of the respondent mother would express fear of threat and coercion on the side of the petitioners. She would also submit that due to the activities of the grandparents viz., the petitioners herein, she had approached the Police Authorities to seek her protection.
- Considering the various aspects and also the fact that the petitioners are the grandparents of the minor child who had lost their dear son, I am of the view that they may be permitted to meet the minor child. However, considering the various apprehensions on the side of the respondent, it would be better if such visitation of the grandparents to meet their granddaughter shall take place at the Child Care Centre attached to the Family Court, Chennai on 1st and 3rd Saturdays of every month between 3.00 P.M. & 5.00 P.M., this interim arrangement is made till all the applications are disposed of.
Aggrieved by the aforesaid order granting visitation rights to the respondents, the appellant/daughter-in-law has preferred this original side appeal.
Frankly speaking, the Division Bench then lays bare in para 8 stating precisely and pragmatically that:
The challenge before us is to the grant of visitation rights to the respondents/grandparents by the learned Judge as an interim measure. The appellant has raised several allegations against the respondents including harassment, neglect of the child's health, forcibly taken away the child, vandalizing her parental home, etc. and therefore, the respondents are not entitled for custody as well as visitation rights of the minor child. She further alleged that the mediation agreement dated 03.11.2022 was signed by her under duress.
Do note, the Division Bench notes in para 9 that:
On the other hand, it is the case of the respondents that they have already been affected by the death of their only son; and that, they own substantial properties in Chennai and sufficient means to secure the child's future, whereas, the appellant's parents have limited means, which would be detrimental for the proper upbringing of the child, if she is in their custody.
Be it noted, the Division Bench then notes in para 10 that:
Upon considering the rival submissions, this court is of the view that truthfulness of the allegations raised by the parties cannot be gone into in this appeal and the same can be determined only after full fledged trial, based on the oral and documentary evidence adduced by them. However, this court has to decide as to whether the grant of visitation rights to the respondents/grandparents by the learned Judge is sustainable.
Most significantly and so also most forthrightly, we need to note that the Division Bench then further propounds aptly in para 11 what constitutes the real cornerstone of this notable judgment stating sagaciously and succinctly that, In custody/guardianship matters, the courts have to consider the welfare of the minor child, which is a paramount consideration and to ensure and safeguard family system in the country, which is fast eroding and to ensure that there is overall development of the minor child and there is proper environment and upbringing of the child and therefore, the best interests of the child are taken care.
In the present case, admittedly, the minor child as on date is at the tender age of 2½ years (born on 03.09.2021) and therefore, the appellant/mother can claim custody over the minor child. At the same time, the grandparents cannot be denied reasonable access/visitation rights, which will also help the child's normal development. An affectionate relationship with grandparents is recognised as beneficial for the child. It is to be pointed out at this juncture that the minor child had been under the grandparents' care since birth, which was disturbed due to the strained relationship between the parties.
It is worth noting that the Division Bench then directs in para 12 that:
Upon weighing the totality of facts and circumstances of the case, this court is inclined to modify the order of the learned Judge, granting visitation rights to the respondents/grandparents, by restricting it to once in every month, i.e., the first Saturday from 2.00 pm to 6.00 pm at the Child Care Centre attached to the Family Court in Chennai. The appellant shall personally bring and leave the child for visitation. The parties are at liberty to have amicable settlement between themselves or to approach the learned Judge, for any other relief. All the contentions raised herein are left open to be adjudicated in the pending applications and original petition.
Finally, the Division Bench then concludes by directing in para 13 of this brilliant judgment that:
This Original Side Appeal is disposed of on the above terms. No costs. Consequently, connected miscellaneous petition is closed.
All said and done, the Madras High Court has made it indubitably clear in this learned judgment that courts have to safeguard the family system which is fast eroding. It is the bounden duty of all the courts to pay heed to what the Madras High Court has held in this leading judgment and in similar such cases act accordingly. No denying it!
Sanjeev Sirohi, Advocate,
s/o Col (Retd) BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut - 250001, Uttar Pradesh
