Delhi High Court: In a case wherein, an appeal was filed by the appellant under Section 47 of the Guardians and Wards Act, 1890 against the impugned judgment dated 28-2-2022, whereby the appellant was given limited visitation rights of his son, the Division Bench of Suresh Kumar Kait and Neena Bansal Krishna*, JJ., while balancing the child’s rights and his interest and welfare, upheld the visitation rights granted by the Family Court vide impugned judgment dated 28-2-2022 and accordingly, dismissed the appeal.
Background
In the instant case, the appellant-husband got married to the respondent-wife on 15-1-2006 as per Hindu rites and ceremonies, and from their wedlock a son was born on 21-4-2007. The disputes arose between the husband and the wife, and they started living separately since 2009.
The husband stated that after his father’s death on 29-12-2014, he had approached his wife to resume the matrimonial relationship, but she did not agree. The husband further asserted that in a complaint case that was pending before the Metropolitan Magistrate, Central District, Tis Hazari Courts, New Delhi, the husband had requested meeting with his son and the matter was referred to the Mediation Cell, Tis Hazari, Delhi, but there was no fruitful result.
The husband asserted that he had tried many times to meet his son, but his wife prevented him to meet and also, threatened him that if made any endeavor to meet his son, she would file a police complaint. The husband further asserted that the wife had filed a petition under Section 125 of the Criminal Procedure Code, 1973 for maintenance, wherein she asserted that she was unable to maintain her son, thus the husband was further directed to pay Rs. 4500 per month towards his son maintenance.
Therefore, the husband contended that considering his financial capacity and his son’s welfare, the son’s custody should be handed over to him.
The Family Court held that handing over the child’s custody would not be in child’s interest. But, considering the husband’s inclination to meet his child, he was granted visitation rights to meet his son from April, 2022 for two hours or till the time his son intended to continue meeting on every second Saturday from 10:00 am to 12:00 pm after every three months.
Thus, the husband filed the present appeal against the impugned judgment.
Analysis, Law, and Decision
The Court observed that in the present case, the husband had claimed the custody of his child on the ground that his wife did not have any financial capacity to look after the needs of their son.
The Court relied on Dhanwanti Joshi v. Madhav Unde, (1998) 1 SCC 112 and opined that while considering the issue of child’s custody, the financial status of either party was not the sole determining factor.
The Court further stated that in the present case, the husband had himself affirmed that he was doing a labour job of aluminium and was earning Rs. 200-250 per day, whereas the wife was a post graduate and earning around Rs.10,000-15,000 per month, though she was unemployed for the last two or three years. Thus, the Court opined that the wife was not only more qualified but also had better financial capacity to take care of her son and no evidence was shown by the husband to show that the wife was not able to take care of the educational, financial or other needs of her son.
The Court further stated that it was pertinent to observe that since the age of two years, the child was in the exclusive custody of his mother and now, when he was of 16 years of age, he had expressed his independent preference of continuing in the custody of his mother.
Further regarding the issue whether the husband was entitled for the visitation rights, the Court relied on Yashita Sahu v. State of Rajasthan, (2020) 3 SCC 67, wherein it was held that the “child, especially of tender age required love, affection, company and protection of both the parents, he is not an inanimate object which can be tossed from one parent to the other. The Court must weigh each and every circumstance very carefully before deciding the manner in which the custody should be shared between the parents. This is to ensure that the child does not lose social, physical and psychological contact with either of the parents. It is only in extreme circumstances that even the visitation rights may be denied.”
The Court further stated that in the present case, even though the parties were residing in close vicinity to each other, the Court could not ignore that the child had minimalistic contact with the father since infancy and had no inclination to meet with his father.
The Court while balancing the child’s rights and his interest and welfare, upheld the visitation rights granted by the Family Court vide impugned judgment dated 28-2-2022 and accordingly, dismissed the present appeal.
[Gautam Jindal v. Meenu Jindal, 2023 SCC OnLine Del 5622, decided on 12-9-2023]
*Judgment authored by- Justice Neena Bansal Krishna
Advocates who appeared in this case :
For the Respondent: Shivani, R.S. Dakha, M.S. Dakha and Meena Tyagi, Advocates;
