By- Prachi Bansal, Advocate, Lex Maven
The Hon’ble Delhi High Court on 12th January 2024 in the case of in ABC vs XYZ (2024:DHC:394-DB) has held the following:-
ISSUE BEFORE THE HON’BLE COURT
The Father of the child preferred a petition u/s 7 and 25 of Guardianship and wards act 1890 for declaration/appointment as guardian and permanent custody of the child before the Ld. Principal Judge Family Court Delhi. The Ld. Principal Judge, Family Court, considered the evidence as led by the father and declared both, the mother and the father, being the parents, as joint guardians of the minor child. Further in respect of the custody of child it was observed that all the needs and requirements were being well taken care of by the mother and the child, who was of age of discretion i.e., 15 years, had also exercised his preference of being with the mother. Both the parents were declared as joint guardians and custody was directed to be continued with the mother while the respondent/father was granted visitation rights in the following terms: –
“(i) The respondent will leave the child at the house of petitioner on every first Saturday of each month at 12:00 noon. The petitioner will leave the child back at respondent’s house at 05:00 pm on first Sunday of the month. Thus the child will have a night stay at petitioner’s house between first Saturday and first Sunday of each month.
(ii) If the child has any tuition classes/school classes/any other extra curricular activities, it will be duty of petitioner to make the child attend said classes.
(iii) In case the child is ill on the aforesaid first Saturday and first Sunday of the month, the petitioner shall take all medical care of the child at his own expenses.
(iv) On every third Sunday of the month, the respondent shall leave the child at petitioner’s house at 12:00 noon and petitioner shall leave the child at respondent’s house at 5:00 pm on that very day. The directions at point (ii) & (iii) shall be applicable to petitioner during this visitation also.”
The mother of child being aggrieved of the visitation rights granted to the father approached the Hon’ble Court by preferring an appeal u/s 19 of Family Courts Act 1984.
OBSERVATION MADE BY THE HON’BLE COURT
The Hon’ble Court while appreciating the balanced view taken by the Ld. Principal Judge Family Court in order to appoint both the parents as guardian of the child but has also adopted a divergent view in respect to the matter considering the visitation right of father towards the child. The Court observed that the child has been living with his mother from the age of 2 and currently the child is having an age of 16 yrs and is having least affection with his father which is evident from the statement given by the child itself that he wants to live with his mother and even concluded that the financial status of either party is not the sole determining factor while considering the issue of custody, though it may be relevant. Thus even if the mother is less financially capable she becomes no less competent to ensure the welfare of child and the father would still be under the obligation to ensure the financial well being of child. Further the father of child has not paid the maintenance awarded by the Ld. Family Court for past 3 years and even the execution petition preferred by the mother is pending. Therefore while considering all the circumstances in detail the Hon’ble Court modified the conditions of visitation and held as follows:-
“We observe that the Ld. Principal Judge has rightly concluded from the circumstances that the custody of the child shall remain with the appellant/ mother when she has been in exclusive custody of the child, since he was two years old and is now more than sixteen years. However, considering that the respondent is his father, some interaction with the child is imperative for his interest and welfare, as has also been held by the Ld. Family Judge”.
Therefore, considering all the surrounding circumstances and keeping in mind the physical and mental well-being of the child, the profound alienation of the child for the last about 14 years and the reservation expressed by him in meeting the father, we hold that it would not be in the best interest and welfare of the child if he is perforce compelled to stay overnight with the respondent/father, even though it is on one weekend in the month.
We therefore, modify the overnight custody and the visitations rights granted, as follows:
(i) The appellant/mother is directed to bring the child to the Children’s Room of Family Court Saket on every first and third Saturday, of every month, from 02:00 to 05:00 P.M. for meeting the respondent/father. In case, any Saturday is a holiday, the child would be produced on the following Saturday or may be compensated on any other date as per mutual convenience.
(ii) The respondent/father shall be permitted to talk to the child on mobile phone at least once a week, subject to the convenience of the child.
(iii) This Order shall remain effective till the child attains the age of majority.
