It is most imperative to note that while ruling on a very significant legal point pertaining to father’s right to visit child, the Supreme Court in a most learned, laudable, landmark, logical and latest judgment titled Sugirtha vs Gowtham in Civil Appeal arising out of SLP (C) No. 18240 of 2024 and cited in Neutral Citation No.: 2024 INSC 1036 that was pronounced as recently as on December 20, 2024 minced absolutely just no words to lay down in no uncertain terms that in child custody cases, a father’s right to visit his child cannot be enforced at the cost of the child’s health and well-being. In other words, it was made indubitably clear by the top court that the child’s health and well-being is paramount and it cannot be put in jeopardy by enforcing father’s right of visitation. It must be mentioned here that a Bench of Apex Court comprising of Hon’ble Mr Justice Vikram Nath and Hon’ble Mr Justice PB Varale made the key observation while altering the interim visitation arrangements that were made with respect to a child who was caught in a custody battle between her estranged parents.
By the way, it must be disclosed here that the Madras High Court had earlier ordered the child’s mother to bring the child from Madurai to Karur every week so that the father may interact with his child for four hours each Sunday. This order was challenged by the mother of the child in the Apex Court on the ground that it affected the health of the child. The Supreme Court modified this arrangement by asking the father to meet his daughter in Madurai instead, where the mother and daughter resided.
At the very outset, this brief, brilliant, bold and balanced judgment sets the ball in motion by first and foremost putting forth in para 2 that:
The present appeal arising from the Special Leave Petition No. 18240 of 2024 challenges the validity of the judgment dated 21.03.2024 passed by the Madras High Court’s Madurai Bench in C.M.A. (MD) No. 118 of 2024. The High Court, through the impugned order, has dismissed the appellant–mother’s miscellaneous appeal and upheld the interim visitation rights granted to the respondent–father and modified the directions passed by the Family Court.
To put things in perspective, the Division Bench envisages in para 3 while elaborating on the facts of the case that:
Facts giving rise to the present appeal are that the parties herein got married on 09.09.2021 and a daughter was born to them on 06.06.2022. Shortly after birth of the child, in June 2023, the appellant filed a petition for dissolution of marriage under Section 13(1)(ia) of the Hindu Marriage Act, 19551, on the ground of cruelty. Appellant in her petition contended that the respondent had continuously been committing domestic violence on her as well as the child. He had deserted them on 01.07.2022, and when he returned later, he attempted to kill them on 16.08.2022. She has also asserted that he would also beat up the child for absolutely no reason. She further submitted that the parties have been living separately since 18.08.2022.
As we see, the Division Bench discloses in para 3 that:
Facts giving rise to the present appeal are that the parties herein got married on 09.09.2021 and a daughter was born to them on 06.06.2022. Shortly after birth of the child, in June 2023, the appellant filed a petition for dissolution of marriage under Section 13(1)(ia) of the Hindu Marriage Act, 19551, on the ground of cruelty. Appellant in her petition contended that the respondent had continuously been committing domestic violence on her as well as the child. He had deserted them on 01.07.2022, and when he returned later, he attempted to kill them on 16.08.2022. She has also asserted that he would also beat up the child for absolutely no reason. She further submitted that the parties have been living separately since 18.08.2022.
While elaborating further, the Division Bench lays bare in para 4 that, Respondent in October 2023, had preferred an application under Section 26 of the HMA in the divorce proceedings, seeking visitation rights during the pendency of the proceedings. The Family Court allowed the respondent’s application and in its order dated 10.11.2023 directed that the appellant should take the child to Karur, Tamil Nadu, every Sunday in the morning from 10:00 hours to 12:00 hours, and hand over the child to the respondent in the campus of the Kalyana Pasupatheswarar Temple, Karur.
As anticipated, the Division Bench reveals in para 5 that:
Appellant approached the High Court against the above judgment of the Family Court on the ground that she is now residing in Madurai and the distance between Madurai and Karur is 150 kilometers, and thus the long travel of 300 kilometers every Sunday would be adversarial to the health of the child. Further, she has also contended that there is continuous death threat to the life of the appellant and the child; the respondent has never taken care of the child, the child has never been in his company, and thus, respondent is effectively a stranger for the child. Therefore, such visits would only be a source of mental agony to her.
Do note, the Division Bench notes in para 6 that:
The High Court, while dismissing the miscellaneous appeal filed by the appellant, observed that since the father is also the natural guardian of the child, he is also entitled to have the custody of the child. The High Court made attempts at uniting the parties in the interest of the child, but the reconciliation attempts have failed. Thus, the High Court while noting its disappointment towards the failed attempts at reconciliation, observed that the agony of missing the early childhood of one’s offspring cannot be prolonged for any of the parties. Thus, the High Court modified the directions of the Family Court and directed the appellant to take the child to Karur on every Sunday and hand over to the respondent between 10:00 AM to 02.00 PM, at the place mentioned in the application before the Court below or any other place in Karur which is convenient due to the summer condition, taking into consideration the tender age of the child, for a period of two months and thereafter, hand over the child for alternative weekends till the Guardian Wards Original Petition is decided.
As things stands, the Division Bench points out in para 7 that:
The appellant is before us challenging the above judgment of the High Court on the ground that this set up envisages a travel of about 300 kilometers, to and from Karur, every Sunday, causing great difficulty and hardship to the minor child. She has further submitted that the respondent is a stranger to the child. It is natural that a minor child of such tender age i.e., two years will get extremely uncomfortable from the presence of the respondent. That the daughter was born on 06.06.2022 and the parties have been living separately since 18.08.2022, and thus, the respondent has never stayed with or cared for the child. Owing to the history of domestic violence, threat to life, and negligence of the respondent, such visitation rights to the respondent would be completely averse to the best interest of the minor daughter.
Quite significantly, the Division Bench observes in para 14 that:
We also recognise that the child has effectively been in the care of the respondent for approximately two months only, as the parents started living separately shortly after her birth. But this does not compromise the respondent’s rights as a father to visit and enjoy the company of his daughter. The matrimonial disputes and grave allegations between parents should not be an impediment to a child’s right to have care, company, and affection of both the parents. It is evident from multiple failed attempts at mediation that the parties are not inclined to reconcile. While no guardianship or custody petition has been preferred by the respondent, the visitation rights of the father, as prayed in the application, require a careful and empathetic consideration during the pendency of the divorce proceedings.
Most significantly, the Division Bench encapsulates in para 15 what constitutes the cornerstone of this notable judgment postulating that:
In all of this, the interest of the minor child is paramount. In the process of adjudicating upon the rights of the parents, her health cannot be compromised. Further, while the respondent has the right to visit the child, it cannot be at the cost of the child’s health and wellbeing. Keeping in mind the best interest of the child and the interests of the parents, we agree with the High Court to the extent of granting certain visitation rights to the respondent, but the directions and set up to enable the same appear to be adversarial to the child and require to be modified.
It is worth noting that the Division Bench notes in para 16 that:
The directions passed by the High Court as well as the Family Court are not supported by any cogent reasons for allowing the visitation to take place at Karur. These orders do not provide any justified reasons and do not appear to have kept the best interest and welfare of the child as paramount. Thus, keeping the interest and well being of the child as the priority, we deem it appropriate and just to move the place of visitation from Karur to Madurai.
It would be instructive to note that the Division Bench directs in para 17 that, Considering the best interest of the child, her tender age, and health, we direct that:
- Respondent shall be allowed to visit the minor daughter every Sunday between 10:00 AM and 02:00 PM.
- Such visits shall take place in Madurai, in a public park or a temple premises, and in the presence of the appellant considering the child’s tender age. The appellant, though must be present, shall stay at a distance of approximately 10 feet.
- The child shall be handed over to the respondent at the place of visit in Madurai at 10:00 AM on Sundays and be returned to the appellant by 02:00 PM.
In addition, the Division Bench directs in para 18 holding that:
The appeal is accordingly partly allowed, in respect of the limited question of place of visitation, and the judgment of the High Court is modified to the extent of the above directions.
Finally, the Division Bench then concludes by holding in para 19 that:
Pending application(s), if any, shall stand disposed of.
In conclusion, we thus see that the Apex Court has very rightly made it amply clear that father’s right to visit child cannot be at cost of child’s health and well-being. The top court thus very rightly overturned the High Court and the Family Court’s decision to make the mother and child travel to Karur to meet father of child. It was the father who was then obligated by the Supreme Court to travel to Madurai to meet his daughter so that child’s health and well being don’t suffer immeasurably. Very rightly so!
Sanjeev Sirohi, Advocate,
s/o Col (Retd) BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut - 250001, Uttar Pradesh
