2025 INSC 99
SUPREME COURT OF INDIA
(HON’BLE
VIKRAM NATH, J. AND HON’BLE PRASANNA B. VARALE, JJ.)
RUHI AGRAWAL
Petitioner
VERSUS
NIMISH S. AGRAWAL
Respondent
Special
Leave Petition (Civil) No. 10349 OF 2022-Decided on 22-01-2025
Family
Constitution of India,
Article 136 – Custody of minor – Visitation right – Challenge as to - Since both the
parties have made severe allegation against each other to bring forth their
individual concerns for the physical safety and mental wellbeing of the child
while in the company of the opposite parent, will not go into the merits of
these allegations as several cases are still pending between the parties and petition
yet to be heard on merits - But, keeping the safety and welfare of the child as
paramount, believe that these submissions cannot be taken lightly - During the
pendency of the petition before this Court, deem it appropriate to allow the
following visitation arrangements made by the High Court to continue:
i. The father or
grandparents would be able to engage with the child on a suitable video
conferencing platform for one hour every Saturday and Sunday and 5- 10 minutes
on other days.
ii. Both the father
and the mother in order to facilitate the video conferencing in between shall
procure smart phones which would facilitate the inter-se video calling.
iii. Since both the
parties are living in the same district, it is directed that on a fortnight
basis on the working Saturday the child would be produced before the Family
Court, Durg at about 10:30 AM to 11:00 A.M. by the wife. Wherefrom the child
may be taken by the husband for the entire day and shall be returned in between
4:30 PM to 5:00 pm before the family Court to enable the mother to get back the
custody.
iv. During the
vacation, the child would be entitled to be in the company of
father/grandparents, initially for a period of one day from 9.00 a.m. to 9.00 p.m.
Directed that the
visitation rights mentioned in clause (iii) and (iv) above shall be exercised
only in the presence of a court appointed Commissioner, who shall be a
female. The custody of the child shall be taken by the respondent in the
morning and returned to the petitioner no.1 in the evening, in the presence of
the court appointed Commissioner. Further, the Commissioner shall be present at
all times during the course of the visitation meetings, which shall take place
in a public place only.
Interim
visitation rights modified only to the above extent of requiring the presence
of a female court Commissioner who shall be appointed by the Family Court at
Durg, Chhattisgarh within four weeks from the date of this order - Petition directed
to listed after two months.
(Para
14, 18 to 20)
ORDER
Vikram Nath, J.:- This petition arises
from an order of the Chhattisgarh High Court, dated, 11.05.2022, granting
certain, specified visitation rights to the respondent – father in his appeal
against dismissal of his petition seeking custody of the child before the
Family Court, Durg.
2.
Petitioner no.1 and respondent were married on 16.01.2007 and out of this
wedlock, petitioner no. 2 – daughter was born on 12.01.2012. The primary
subject of contention is the custody and welfare of their minor between
the parties since 2016, the child has resided with the petitioner no. 1, who
has been the primary caregiver and custodian. The petitioner no. 1 claims to
have provided a stable, nurturing environment conducive to the child’s
emotional, educational, and overall well-being. On the other hand, the
respondent has consistently maintained that he has the intention and
willingness to actively contributed to the child’s upbringing and seeks a
greater role in shaping the child’s life.
3.
The Family Court granted sole custody of the child to petitioner no. 1 and the
respondent was awarded limited visitation rights—restricted to one and a half
hours on the first Sunday of every month and certain holidays.
4.
Aggrieved by the limited visitation rights, the respondent appealed to the High
Court, seeking joint custody or an extended visitation schedule. The High
Court, after a comprehensive review of the evidence, agreed to retain sole
custody with petitioner no. 1 but expanded the respondent’s visitation rights.
It allowed longer meeting hours, physical meetings on a fortnight basis, shared
vacation time, and regular video calls to promote a meaningful bond between the
father and the child.
5.
To implement this balance, the High Court set forth the following revised
visitation arrangement:
i. The father or
grandparents would be able to engage with the child on a suitable video
conferencing platform for one hour every Saturday and Sunday and 5- 10 minutes
on other days.
ii. Both the father
and the mother in order to facilitate the video conferencing in between shall
procure smart phones which would facilitate the inter-se video calling.
iii. Since both the
parties are living in the same district, it is directed that on a fortnight
basis on the working Saturday the child would be produced before the Family
Court, Durg at about 10:30 AM to 11:00 A.M. by the wife. Wherefrom the child
may be taken by the husband for the entire day and shall be returned in between
4:30 PM to 5:00 pm before the family Court to enable the mother to get back the
custody.
iv. During the long
holiday/vacation covering more than two weeks, the child would be allowed to be
in the company of the father/grandparents for a period of 7 days and in doing so
in order to facilitate the same, the curriculum of the School/holidays shall be
placed before the Family Court, Durg so that the custody of the child can be
decided to be given at prior point of time for a limited period to the father.
The period would be fixed by the Family Court after hearing both father and
mother.
v. During the
festivals - Dussehra, Diwali and Holi, the father may join the company of the
child at an independent venue for a limited period of time, 1 to 2 hours for a
day and the child would be brought by the person of confidence of mother. The
husband would intimate place or venue through the intervention of the
family Court well before time.
6.
Petitioner no. 1 has challenged this modified arrangement before this Court,
citing concerns about the child’s safety and emotional stability.
7.
This Court in its order dated 02.06.2022, while issuing notice, had directed as
follows:
“Insofar as unnumbered
clauses 1 to 3 and 5 are concerned, we are not inclined to interfere with the
same at this stage.
So far as unnumbered
clause 4 is concerned, for the time being, it is kept in abeyance and modified
that during the vacation, the child would be entitled to be in the company of
father/grand parents, initially for a period of one day from 9.00 a.m. to 9.00
p.m. Needless to say that insofar as the rest of the directions are concerned,
the petitioner No. 1 shall strictly comply with the same.”
8.
The petition has been preferred on the grounds that the extended visitation
schedule disrupts the child’s routine and could negatively impact her academic
performance and extracurricular activities. The petitioner also highlights the
respondent's alleged history of abusive behavior, criminal charges, and past
incidents of conflict during visitation, asserting that these factors make the
expanded schedule inappropriate and unsafe for the child.
9.
Conversely, the respondent defends the High Court’s ruling, asserting that the
expanded visitation arrangement is in the child’s best interest. He claims that
petitioner no. 1 has manipulated the child and influenced her views, limiting
his ability to build a relationship. The respondent argues that the revised
schedule allows him to strengthen his bond with the child, which is essential
for her overall development.
10.
While the issue before us is still open, the respondent requested for an
interim arrangement to be made in order to enable him to exercise certain
visitation rights, meet his daughter, and redevelop the bond that has strained
over time.
11.
We have heard the learned senior counsels appearing for both the parties and
have carefully considered the submission made in light of the facts of the case
and the principle of welfare and best interest of the child, on the question of
interim visitation rights to respondent during the pendency of this petition
before us.
12.
The weeklong and overnight stays cannot be allowed in the interim, since the
challenge of the petitioner no.1 before this Court is mainly on those
arrangements and thus the issue remains open for hearing before us.
13.
We emphasize the need for both parents to cooperate and communicate effectively
to ensure the smooth implementation of the visitation arrangement. Mutual
respect and collaboration are essential for the child’s well-being.
14.
Since both the parties have made severe allegation against each other to bring
forth their individual concerns for the physical safety and mental wellbeing of
the child while in the company of the opposite parent, we will not go into the
merits of these allegations as several cases are still pending between the
parties and we are yet to hear the petition on merits. But, keeping the safety
and welfare of the child as paramount, we believe that these submissions cannot
be taken lightly.
Petitioner
no.1 has urged before us that she should be allowed to be present during the
meetings to ensure the child’s safety, whereas the respondent has contested
against such arrangement on the grounds that petitioner no.1 tends to control
petitioner no.2 and thus does not allow the visits to go smoothly and without
interruption.
15.
Owing to the circumstances and the allegation in the present case, we do not
deem it appropriate to allow petitioner no.1 to be present during the
visitation meetings that will take place during the pendency of this petition.
But we understand the concerns of a mother of a teenage daughter, especially
one who has made serious allegations against her husband. Thus, as urged by
petitioner no.1 that the safety of the child be ensured and as suggested by the
respondent, we deem it appropriate that a Court appointed Commissioner, who
shall be a female, shall be present at all times during the visitation
meetings.
16.
Such an arrangement strikes a fair balance between the child’s need for
stability, her safety and welfare, and the respondent’s right to meaningful
involvement in the child’s life. Both parents are reminded of their duty to
prioritize the child’s welfare and work collaboratively to create a nurturing
and supportive environment for the child.
17.
After careful consideration of the submissions, we find no reason to not allow
the abovementioned visitation rights to continue in the interim.
18.
During the pendency of the petition before this Court, we deem it appropriate
to allow the following visitation arrangements made by the High Court to
continue:
i. The father or
grandparents would be able to engage with the child on a suitable video
conferencing platform for one hour every Saturday and Sunday and 5- 10 minutes
on other days.
ii. Both the father
and the mother in order to facilitate the video conferencing in between shall
procure smart phones which would facilitate the inter-se video calling.
iii. Since both the
parties are living in the same district, it is directed that on a fortnight
basis on the working Saturday the child would be produced before the Family
Court, Durg at about 10:30 AM to 11:00 A.M. by the wife. Wherefrom the child
may be taken by the husband for the entire day and shall be returned in between
4:30 PM to 5:00 pm before the family Court to enable the mother to get back the
custody.
iv. During the
vacation, the child would be entitled to be in the company of
father/grandparents, initially for a period of one day from 9.00 a.m. to 9.00
p.m.
It is directed that the
visitation rights mentioned in clause (iii) and (iv) above shall be exercised
only in the presence of a court appointed Commissioner, who shall be a
female. The custody of the child shall be taken by the respondent in the
morning and returned to the petitioner no.1 in the evening, in the presence of
the court appointed Commissioner. Further, the Commissioner shall be present at
all times during the course of the visitation meetings, which shall take place
in a public place only.
19.
Thus, we modify the interim visitation rights only to the above extent of
requiring the presence of a female court Commissioner who shall be appointed by
the Family Court at Durg, Chhattisgarh within four weeks from the date of this
order.
20.
List the petition after two months.
------