Summary
In a mother's appeal against interim visitation directions made during divorce proceedings, the Supreme Court upheld the father's right of visitation but, finding no reasons for fixing the venue 150 km away at Karur, shifted weekly supervised visits to Madurai where the two-year-old child lives, as the child's welfare is paramount.
Issues
- Whether the High Court and Family Court rightly required the mother to take a two-year-old child about 150 km each way every Sunday so that the father could exercise interim visitation rights.
- How the father's right of visitation is to be balanced against the welfare and health of a child of tender age during pending matrimonial proceedings.
Provisions considered
- Section 26, Hindu Marriage Act, 1955The father's application for visitation during the wife's divorce petition was made under this section, which permits interim orders on custody of minor children in proceedings under the Act. The Court sustained the grant of visitation but modified the place and arrangements to protect the child's welfare. (¶¶ 4, 14, 15, 16, 17)
Held
- Although a father, as natural guardian, should not be denied the company of his child and his anguish at missing her early years is a fair consideration, that interest cannot override the interest of the child. (¶ 12)
- Serious allegations of domestic violence and threats to life require examination on facts and evidence and are not to be decided at the stage of interim visitation. (¶ 13)
- Matrimonial disputes and grave allegations between parents should not stand in the way of a child's right to the care, company and affection of both parents; the father's limited past care of the child does not take away his right to visit her. (¶ 14)
- The child's interest is paramount: a parent's visitation right cannot be exercised at the cost of the child's health and wellbeing, and orders fixing the venue at Karur, which gave no cogent reasons and did not treat the child's welfare as paramount, required modification. (¶¶ 15, 16)
- The Court directed that the father may visit the child every Sunday from 10:00 AM to 2:00 PM at a public park or temple premises in Madurai, with the child handed over there and returned by 2:00 PM, the mother remaining present at a distance of about 10 feet given the child's tender age. (¶ 17)
Result
Appeal partly allowed on the limited question of the place of visitation; the High Court's judgment modified by directions shifting weekly Sunday visits to Madurai; pending applications disposed of.