Visitation Right Is Important Right Of Either Of The Parents; Must Be Decided On Basis Of Child’s Best Interest: Orissa High Court

The writ petition was preferred by the natural father assailing the order passed by the Family Court, vide which his prayer for visitation right with his minor son, who is aged about 7 years, stood rejected.

The Single Bench of Justice Sanjay Kumar Mishra asserted, “Since visitation right is an important right of either of the parents to see the children born out of their wedlock and while deciding the welfare of the child, it is not the view of one spouse alone, which has to be taken into consideration, this Court is of the view that the Court is required to decide the issue of visitation on the basis of what is in the best interest of the child. This Court is of the further view that the impugned order passed by the learned Judge, Family Court, Cuttack deserves interference.”

Advocate Suman Modi represented the Petitioner while Advocate Kirtan Dang represented the Respondent.

Factual Background

The Petitioner and the Opposite Party wife got married in the year 2011.They lived together for around five years, and then separated due to temperamental differences. The wife instituted a case under section 13(1)(ia)&(i-b) of the Hindu Marriage Act, 1955, before the Family Court which was decreed ex parte against the Petitioner, dissolving the marriage. Thereafter the wife remarried another man, an elderly person having three children from his first marriage, out of which one got married. The Petitioner claimed that the parties had agreed that their daughter would remain in the custody of the wife and their son would remain in the exclusive custody of the Petitioner, with mutual visitation right of children for both the parents.

It was alleged that one day the son reportedly fell ill and was taken away by the Opposite Party (wife) along with her second husband, on being intimated by the School authorities. Since then, she had allegedly not allowed the Petitioner to meet or communicate with son. An FIR was also instituted. The Petitioner father then filed an application under Section 6 of the Hindu Minority and Guardianship Act, 1956 for custody of his son before the Family Court and an application was also moved for visitation/communication with his son. However, the Family Court, rejected the said application citing the absence of suitable neutral venue and apprehension of untoward incidents. Aggrieved thereby, the petitioner approached the High Court.

Reasoning

The Bench took note of the fact that as an interim measure, the Court had earlier permitted the Petitioner to make calls/WhatsApp calls once in a day to the Opposite Party mother, if he intended to talk to his son. Referring to an earlier incident before the Court, the Bench stated, “After such interaction with the minor son, both the Petitioner and the Opposite Party No.1 were called to the Chamber. Only then, this Court came to know that the Opposite Party No.2-Shivay Sharma was intending to say before this Court that he is allegedly afraid of his natural father, that too addressing him as “Uncle”, which is almost unbelievable and seems to be outcome of being tutored by Opposite Party No-1.”

On a prima facie consideration of the facts and circumstances of the case including the Counsellor’s Report, the Bench noted that the Petitioner had kept himself away from remarriage and the custody of both the children was at present with their mother, who was married to an elderly person already having three children. “...this Court is of the view that the refusal of visitation right to the natural father by the learned Judge, Family Court, Cuttack vide the impugned order appears to be unjust and contrary to the settled position of law”, it added.

Thus, allowing the Petition, the Bench remitted the matter back to the Judge, Family Court, Cuttack to pass appropriate order afresh. “Learned Court below shall also put appropriate condition enabling the Petitioner to be in touch with Opposite Party No.2 telephonically or through WhatsApp communication during pendency of the C.P. No.543 of 2024”, it concluded.

Cause Title: A v. B (Case No.: W.P.(C) No.10091 of 2025)

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