The Delhi High Court directed professional counseling for both parents and their minor daughter to help start unsupervised visitation with the father. The Court said the child’s welfare is the most important and both parents must work together to make the child comfortable.
The Delhi High Court has recently modified a Family Court order regarding the visitation rights of a father and has directed that both parents and their minor daughter should undergo professional counseling so that unsupervised visitation can be gradually started.
The Court made it clear that the welfare of the child is the most important consideration and any decision regarding custody or visitation must be taken keeping the child’s comfort, emotional health, and overall well-being in mind.
The case arose after a dispute between the husband and wife regarding the custody and visitation rights of their minor daughter. The petitioner and the respondent got married in the year 2020 and their daughter, referred to as ‘G’, was born in March 2021.
ALSO READ: “Adoption Gives Full Identity”: Adopted Child Can Take Adoptive Parents’ Caste, Rules Bombay High Court
However, due to matrimonial disputes, the couple started living separately in July 2023. After the separation, the petitioner filed a divorce petition under Section 13(1)(ia) of the Hindu Marriage Act, 1955 on the ground of cruelty.
Along with the divorce proceedings, the petitioner also filed an application under Section 26 of the Hindu Marriage Act seeking interim custody and proper visitation rights for his daughter.
On June 3, 2024, the Family Court at Saket passed an order refusing the father’s request for unfettered and unsupervised visitation. The Family Court noted that the child was very young at that time, around 3 years old, and frequent changes in custody could affect the child’s physical and mental health.
Therefore, the Family Court allowed only supervised visitation twice a month in the Children’s Room at Saket Court. The father challenged this order before the High Court under Article 227 of the Constitution of India.
The petitioner argued before the High Court that he was being denied a meaningful role in his daughter’s life and upbringing. He submitted that the Family Court made a mistake by continuing a very restrictive visitation schedule even after the High Court had earlier set aside some restrictions.
He told the Court that he shares a loving bond with his daughter and that such “limited access” was leading to parental alienation. He also requested that he should be given 50% of the vacation time with the child and should also be allowed to participate in the child’s educational decisions equally as a parent.
On the other hand, the respondent opposed unsupervised visitation. She alleged that the petitioner had “severe anger issues” and “hostility”. She also raised concerns about his lifestyle habits like alcohol consumption and smoking, which according to her could be harmful and unsafe for the child.
She argued that since the child is still very young, the process of making the child comfortable with the father should be gradual and not sudden. She also told the Court that the petitioner had not properly fulfilled his financial responsibilities towards the child.
The High Court, after interacting with the child and hearing both parties, observed that the child is comfortable with the father and enjoys spending time with him. The Court noted that there was no sign of fear or hostility from the child towards the father.
However, the Court also noticed that the child was still hesitant to leave the company of the mother and was not ready to go alone with the father for unsupervised visits.
While deciding the matter, the Court relied on the Supreme Court judgment in Yashita Sahu v. State of Rajasthan & Ors. (2020), where it was held:
“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.”
The Court also referred to the judgment in Amyra Dwivedi v. Abhinav Dwivedi (2021), where it was observed that visitation should take place in a child-friendly environment and not in a court complex, as court premises can be stressful and uncomfortable for a child.
After considering all the facts and the emotional condition of the child, Justice Amit Sharma observed:
“It is the considered opinion of this Court that the parents and child need professional assistance in achieving this goal… it would be in the best interest of the child that both the parents should make joint efforts and make sure that the child is equally comfortable with the petitioner for the purposes of unsupervised visitations.”
Based on these observations, the Delhi High Court modified the Family Court’s order and issued several important directions. The Court directed that both parents and the child must visit a professional child counselor or psychologist at the Delhi High Court Mediation and Conciliation Centre. The purpose of this counseling is to slowly prepare the child for unsupervised visitation with the father in a comfortable and emotionally safe manner.
The Court also directed that visitation should not take place in the Children’s Room at Saket Court anymore. Instead, the visitation should take place at a neutral and child-friendly place such as a park, mall, or restaurant near the residences of the parties in Gurugram, so that the child feels relaxed and comfortable.
Further, the Court directed that the counselor should submit a report to the Family Court within four weeks regarding the progress of the counseling and whether the child is ready for unsupervised visitation. The High Court also restored the petitioner’s application under Section 26 of the Hindu Marriage Act before the Family Court, which will now pass a fresh order regarding unsupervised visitation after considering the counselor’s report.
The High Court clearly stated that it has not expressed any opinion on the final merits of the custody and visitation matter and that the Family Court will take the final decision based on the welfare and best interest of the child, which remains the paramount consideration under Indian family law.
This judgment is important because it highlights that in child custody and visitation matters, the welfare of the child is more important than the rights of the parents. The Court also emphasized the importance of both parents in a child’s life and supported the idea of professional counseling to reduce emotional stress and help the child develop a healthy relationship with both parents.
Case Title:
Vimlendu Kumar Jha v. Minal Bhatnagar
Case No. CM(M) 2800/2024
Click Here to Read More Reports on Parents & Child
