Right to visitation can't override child's interest, well being: Supreme Court

New Delhi: The Supreme Court has said it is sound and fair to hold that the father being the natural guardian cannot be denied of the care and custody of the child and that his agony of missing his kid’s childhood cannot be prolonged, but his right to visitation cannot override the interest and well being of the child.

A bench of Justices Vikram Nath and Prasanna B Varale said the visitation rights of the father required a careful and empathetic consideration during the pendency of the divorce proceedings.

"The matrimonial disputes and grave allegations between parents should not be an impediment to a child’s right to have care, company, and affection of both the parents," the bench said.

However, in all of this, the bench said, the interest of the minor child is paramount as in the process of adjudicating upon the rights of the parents, her health cannot be compromised. Further, while the father has the right to visit the child, it cannot be at the cost of the child’s health and wellbeing, it added.

The court modified the Madras High Court's order to the mother to take the two-year-old girl child every Sunday from Madurai to Karur, a distance of 150 km, during the pendency of divorce proceedings of the doctor couple. It moved the place of visitation from Karur to Madurai.

The woman challenged the High Court's order saying the arrangement envisaged a travel of about 300 kilometers, to and from Karur, every Sunday, causing great difficulty and hardship to the minor child. 

She further submitted that the respondent father is a stranger to the child. It is natural that a minor child of such tender age i.e., two years will get extremely uncomfortable from his presence. 

She pointed out the daughter was born on June 06, 2022 and the parties have been living separately since August 18, 2022, and thus, the father has never stayed with or cared for the child. 

Owing to the history of domestic violence, threat to life, and negligence of the respondent, such visitation rights to the respondent would be completely averse to the best interest of the minor daughter, she said.

"We also recognise that the child has effectively been in the care of the respondent for approximately two months only, as the parents started living separately shortly after her birth. But this does not compromise the his rights as a father to visit and enjoy the company of his daughter," the bench said.

The court, however, noted the directions passed by the High Court as well as the family court were not supported by any cogent reasons for allowing the visitation to take place at Karur. 

"These orders do not provide any justified reasons and do not appear to have kept the best interest and welfare of the child as paramount. Thus, keeping the interest and well being of the child as the priority, we deem it appropriate and just to move the place of visitation from Karur to Madurai," the bench said, in its judgment on December 20.