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The Delhi High Court modifies visitation rights granted to the father. Observes that a child suffers the most in custody battles and loses everything due to polarisation of familial relations.

Title: X v. Y


The Delhi High Court modifies visitation rights granted to the father. Observes that a child suffers the most in custody battles and loses everything due to polarisation of familial relations.

The High Court of Delhi has partly allowed an appeal filed by a mother who challenged the judgment passed by the Principal Judge, Family Court, New Delhi declaring the parents of the minor as joint guardians and granting visitation rights to the father, while the custody of the minor was granted to the mother till the age of eighteen years.
The facts leading to the proceedings before the High Court are that the parties got married in the year 2006 and a male child was born of the wedlock in the year 2007. Matrimonial disputes arose between the parties and they separated in the year 2009, after about three years of their marriage. The custody of the child, however, remained with the mother. The father filed a Guardianship Petition under section 7 and 25 of the Guardians and Wards Act, 1890 claiming custody of the minor child being the father and a natural guardian of the child. The Guardianship Petition was contested by the mother.
The learned Principal Judge, Family Court before final adjudication of the petition, interacted with the minor who was 15 years old who clearly stated that he wanted to continue to live with his mother. The learned Principal Judge considered the evidence as led by the father and declared both, the appellant/mother and the respondent/father, being the parents, as joint guardians of the minor child with custody directed to be continued with the mother while the respondent/father was granted visitation rights Aggrieved by the visitation rights, the present Appeal has been preferred by the appellant/mother only to the limited extent challenging the visitation rights.
The High Court observed thus:

The relevant parameters while determining the custody matters has been explained by the Apex Court in the case of Nil Ratan Kundu v. Abhijit Kundu, (2008) 9 SCC 413, wherein it was observed that while dealing with custody cases, the court has to give due weight to a child’s ordinary comfort, contentment, health, education, intellectual development, and favourable surroundings. But over and above physical comforts, moral and ethical values cannot be ignored. They are equally, or even more important, essential and indispensable considerations. If the minor is old enough to form an intelligent preference or judgment, the court must consider such preference as well, though the final decision should rest with the court as to what is conducive to the welfare of the minor.”
“We observe that the Ld. Principal Judge has rightly concluded from the circumstances that the custody of the child shall remain with the appellant/ mother when she has been in exclusive custody of the child, since he was two years old and is now more than sixteen years. However, considering that the respondent is his father, some interaction with the child is imperative for his interest and welfare, as has also been held by the Ld. Family Judge.

Therefore, considering all the surrounding circumstances and keeping in mind the physical and mental well-being of the child, the profound alienation of the child for the last about 14 years and the reservation expressed by him in meeting the father, we hold that it would not be in the best interest and welfare of the child if he is perforce compelled to stay overnight with the respondent/father, even though it is on one weekend in the month.


 X v. Y

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