Parent Denied Custody still should get everyday Access to Child

IN THE SUPREME COURT OF INDIA

CRIMINAL APPEAL NO. 127 OF 2020                                                                                             DATE-20/01/2020

(@ SPECIAL LEAVE PETITION (CRL) NO. 7390 OF 2019

BENCH – J. DEEPAK GUPTA,   J. ANIRUDDHA BOSE

YASHITA SAHU VERSUS STATE OF RAJASTHAN & ORS.

The above case law discusses the visitation rights of the parents living in different states or countries and when either one of them is denied of the custody of the child .It was further considered in this case that along with Visitation Rights, Contact Rights are also important for child. Hence the parent denied of custody of the child shall have right to talk to child 5 to 10 minutes every day (unless there are circumstances to take a different view).

FACTS OF THE CASE

1. The case is a battle for child custody. In this case Yashita Sahu (wife) is the appellant and Varun Verma (Husband) is the respondent. The spouses (Indian citizens) were married in India on 30.05.2016. The husband was a resident of the USA even before their marriage.
2.  
3. The wife too then moved to the US in July that year and lived with him. They begot a female child named Kiyara Verma in May 2017 there and she is an American citizen.
4.  
5. Later, the spouses fell apart; the wife applied for an emergency protection order on 25.08.2018 to the Norfolk Juvenile and domestic relation district court and obtained custody rights over the child, while visitation and contact rights were given to the husband/father.
6.  
7. The order was passed on 26.09.2018 in terms of the agreement reached between the parties. Breaching the court’s order, the wife came away to India with the child.
8.  
9. The husband filed the Habeus Corpus writ petition in Rajasthan High Court where the wife was directed to return to USA within period of 6 weeks to enable the jurisdictional court of USA to pass further orders in regards of the proceedings already pending. Aggrieved by the judgement of the high court the present appeal was preferred.
10.  
11. The case eventually came before our Supreme Court which had passed a detailed judgment wherein, among other issues, the rights of children in such situations are discussed and decided upon.

OBSERVATION OF THE COURT

After hearing both the sides the Hon’ble Court identified these issues. The issues before the Hon’ble court are as such:

1. In cases where the custody of the child is with another parent whether the writ of Habeus Corpus is maintainable or not?

1. The concept and purpose of contact rights and to what extent it is given to the person not having the custody of the child?

The Hon’ble Court observed that the court can invoke its extraordinary writ jurisdiction for the best interest of the child. The court further considered that in cases like Elizabeth Dinshaw vs. Arvand M. Dinshaw & Ors. , Nithya Anand Raghavan vs. State (NCT of Delhi) & Anr.  and Lahari Sakhamuri vs. Sobhan Kodali among others the writ petitions were entertained. The Court referred to the observation from the judgment in Nithya Anand Raghavan vs State and stated that the High Court while dealing with the petition for issuance of a writ of habeas corpus concerning a minor child, in a given case, may direct return of the child or decline to change the custody of the child keeping in mind the welfare of the child.

The Honb’le Supreme Court also observed that along with Visitation Rights the Contact Rights are equally important to the child. The child should have the right to talk to his/her child for 5 to ­10 minutes everyday.

               JUDGMENT/RULING

The Honb’le Supreme Court disposed off the appeal and issued directions while considering the following points:

1. “It is too late in the day to urge that a writ of habeas corpus is not maintainable if the child is in the custody of another parent. The law in this regard has developed a lot over a period of time but now it is a settled position that the court can invoke its extraordinary writ jurisdiction for the best interest of the child.”
2. ” The wife is an adult and no court can force her to stay at a place where she does not want to stay.”
3. ” If courts in different jurisdictions do not respect the orders passed by each other it will lead to contradictory orders being passed in different jurisdictions. We may however again reiterate that the welfare of the child will always remain the paramount consideration”
4. “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. Just because the parents are at war with each other, does not mean that the child should be denied the care, affection, love or protection of any one of the two parents. A child is not an inanimate object which can be tossed from one parent to the other. Even if the custody is given to one parent the other parent must have sufficient visitation rights to ensure that the child keeps in touch with the other parent and does not lose social, physical and psychological contact with any one of the two parents.”
5. “The concept of contact rights in the modern age would be contact by telephone, e-mail or in fact, we feel the best system of contact, if available between the parties should be video calling. Unless there are special circumstances to take a different view, the parent who is denied custody of the child should have the right to talk to his/her child for 5-10 minutes every day. This will help in maintaining and improving the bond between the child and the parent who is denied custody. If that bond is maintained, the child will have no difficulty in moving from one home to another during vacations or holidays. The purpose of this is, if we cannot provide one happy home with two parents to the child, then let the child have the benefit of two happy homes with one parent each.”

CONCLUSION

While deciding matters of custody of child, primary and paramount consideration should be the welfare of the child.A child has a human right to have the love and affection of both the parents and courts must pass orders ensuring that the child is not totally deprived of the love, affection and company of one of her/his parents. . In cases like the present one where the parents are in two different continents effort should be made to give maximum visitation rights to the parent who is denied custody. In addition to ‘Visitation Rights’, ‘Contact rights’ are also important for development of the child specially in cases where both parents live in different states or countries. Hence it can be concluded that the Court has rightly placed the judgment that the parent denied of custody shall have right to talk to child every day. 

You may contact me for your specific case by visiting Contact Us