Naresh Kumar (XYZ) 10 November 2015

‘kids’ age no ground to deny access’

MUMBAI: Observing that "tender age" of a child cannot be a ground to deny overnight access of a minor to her father, a family court allowed a father's plea to have his three-year-old daughter spend Diwali at his home.

Encouraging overnight access from an early stage, the court observed, "The child has a right to enjoy the company and quality time of both the parents. In my opinion, overnight access at home of the non-custodial parent should be encouraged at an earlier stage so that the child have a close and continuous relationship to get love and affection of non-custodial parent and also of the grandparents. The child is able to form and develop the emotional attachment and love only if the access is granted at the early stage."

The court said that mother would have to pay a fine of Rs 5,000 for each of the ten days if she did not comply with the order. While the court directed the father not to take the child out of the city, it further added that both parents should cooperate with each other to ensure smooth and peaceful access to the child.

The court did not accept the mother's claims that that her estranged husband and in-laws are in the habit of calling tantriks over to perform bizarre rituals. "At this interim stage I do not go into the merits of the case as it requires to be proved by both the parties by their evidences. In the reply the respondent (mother) has not shown any sufficient and cogent reason for rejecting the Diwali vacation access of the minor daughter to the petitioner father," the court said.

The father told the court that while the mother had primary access of the child, he was allowed to meet her on three Sundays of the month. He claimed that this access was not made smooth and an earlier order allowing him overnight access during the summer vacation was not adhered to by the mother.

https://timesofindia.indiatimes.com/city/mumbai/Kids-age-no-ground-to-deny-access/articleshow/49727091.cms

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3 Replies

amaresh 11 November 2015

need that judgement, news report serves no purpose in the court.........

SAINATH DEVALLA (LEGAL CONSULTANT) 11 November 2015

Landmark Judgement pronounced by SC dealing with guardianship & custodial and visitation rights to parents and children stuck in matrimonial disputes

ROXANN SHARMA V/S ARUN SHARMA

CIVIL APPEAL No. 1966 OF 2015

In a remarkable judgment dealing with interim custody of child suffering in parent’s matrimonial disputes, visitation rights and guardianship, a 2 judge bench of Supreme Court laid down various propositions of law while awarding the interim custody till final disposal by the trial court to the mother. The bench speaking through Justice Vikramjit Sen, lays down very sharp observations and examines various definitions of a ‘guardian’, ‘visitation rights’ and tests the issue from the angle of provisions of Hindu Minority & Guardianship Act, 1956 and Guardian & Wards Act, 1890.In a custody battle between estranged parents, a minor child, who has not completed five years of age, shall be allowed to remain with the mother, the Supreme Court has ruled saying that in such cases child should not treated as a "chattel". The court said that under Hindu Minority and Guardianship (HMG) Act, a father can be guardian of the property of the minor child but not the guardian of his person if the child is less than five years old.

The Court said that there can be no cavil that when a Court is confronted by conflicting claims of custody there are no rights of the parents which have to be enforced; the child is not a chattel or a ball that is bounced to and fro the parents. It is only the child's welfare which is the focal point for consideration. Parliament rightly thinks that the custody of a child less than five years of age should ordinarily be with the mother and this expectation can be deviated from only for strong reasons.

The apex court quashed the order of Bombay high court which granted custody of a two-year-old child to father on the ground that the Mother had not established her suitability to be granted interim custody of the Infant.

The HMG Act postulates that the custody of an infant or a tender aged child should be given to his/her mother unless the father discloses cogent reasons that are indicative of and presage the livelihood of the welfare and interest of the child being undermined or jeopardized if the custody is retained by the mother. Section 6(a) of the Act, therefore, preserves the right of the father to be the guardian of the property of the minor child but not the guardian of his person whilst the child is less than five years old. It carves out the exception of interim custody, in contradistinction of guardianship, and then specifies that custody should be given to the mother so long as the child is below five years in age. The court said that the Act placed the onus on father to prove that it was not in the welfare of the infant child to be placed in the custody of mother and HC order virtually nullifies the spirit of the enactment. The Act immediately provides that the custody of a minor who has not completed the age of 5 years shall ordinarily be with the mother. The use of the word 'ordinarily' cannot be over-emphasized. It ordains a presumption, albeit a rebuttable one, in favour of the mother.