Mumbai: Observing that a child has the right to spend equal time with both the parents, the Bombay High Court held a father can move an application under the Domestic Violence Act seeking visitation rights. The court also held it necessary to encourage at least visitation rights of fathers, as it would ensure a child does not lose total contact with his father.
The significant ruling was pronounced by a singlejudge bench of Justice Prakash Naik, while referring to the newly enacted – Child Access and Custody Guidelines along with Parenting Plan – a set of norms with provisions for the development of child during the conflict between his parents.
The bench was dealing with a plea filed by a mother challenging the orders of the Sessions court, which had granted access of her five-year-old son to her estranged husband. The mother argued that the father has no right to seek visitation relief under the Domestic Violence Act, which is enacted only for women. Trashing the argument, Justice Naik ruled, “When the custody of the child lies with the wife, there would be no occasion for the wife for filing an application for custody.
In such a situation, a husband will have the remedy to seek visitation rights by filing an application under the DV act.” “Children have the right to be cared for, by both parents regardless of whether their parents are married, divorced, have never married or have never stayed together. The children have a right to spend time on a regular basis with both parents and other people significant for their welfare and development, including grandparents and other members of the family,” Justice Naik held.
The court further emphasised on the need to have an overnight access at home for fathers, who usually do not get custody of their children. “An overnight access at home of the non-custodial parent (father) should be encouraged at an early stage, so that the children have a close and continuing relationship and get the love and affection of not only parents but also of grandparents and other immediate family members like uncles, aunts, cousins and so on,” Justice Naik ruled.
The bench also asked Family Courts to make efforts for granting overnight visitation rights and interim access, immediately. While referring to the newly enacted guidelines, Justice Naik said, “The guidelines assume that each parent has continuous presence in the children’s life. If mediation between conflicting parents is unsuccessful, it shall be the responsibility of the court to ensure that child gets love and affection of both the parents.”The court, accordingly upheld the orders of the sessions court passed in the favour of the father.