'Child Not An Inanimate Object Which Can Be Tossed From One Parent To The Other': Orissa High Court Upholds Father's Visitation Rights

While upholding a father's visitation rights, the Orissa High Court underscored a child of tender age requires love and affection of both of his parents, and cannot be treated as an 'inanimate object' to satisfy the egos and acrimonies between his parents.

It also reiterated that the visitation right of either of the parents can only be decided considering the welfare of the child and not on the basis of individual views of his parents.

Justice Gourishankar Satapathy in his order also highlighted that the children are the worst sufferer in spousal litigations and custody battles and observed –

“The child is not an inanimate object which can be tossed from one parent to other. This Court is of the considered opinion that excepting the extreme circumstance, one parent should not be denied to contact or visit his/her child and the cogent reasons must be assigned while refusing visitation right of either of the spouses to their child.”

Background

The respondent-husband filed a petition seeking divorce from his wife (the petitioner herein). Along with the divorce petition, he filed an interim petition seeking custody of his son. The trial Court decided that the question of custody of the child shall be answered at the time of disposal of the divorce petition.

However, the respondent filed another interim application under Section 26 of the Hindu Marriage Act seeking visitation rights. The Civil Judge (Senior Division), Talcher allowed the application granting such right to the respondent. Being aggrieved, the petitioner-wife filed this writ petition impugning the trial Court's order.

The main contention of the petitioner was that the respondent never took care of the child nor did he provide financial assistance for the survival of the child. The child has been in the custody of the petitioner since 2012. Furthermore, it was her contention that the respondent has neither provided the interim maintenance nor the litigation expenses. Thus, she argued that the respondent ought not be granted the visitation right.

Findings

The Court was of the opinion that the respondent has right to visit his son provided the same is in the paramount interest of the child. He emphasized the need of love, affection and guidance of both the parents in raising a child.

“While deciding any matters relating to the custody or visitation right of the child, the paramount consideration is the welfare of the child and if the welfare of the child so demands, the technical objection cannot come in the way, but while deciding the welfare of the child, it is not the view of one spouse alone which has to be taken into consideration, however, the Court is required to decide the issue on the basis of what is in the best interest of the child.”

The court further opined that the child should not be deprived of the love and affection of both of his parents, which is also his basic human right, only because they are at war with each other. It was also observed that barring extreme circumstances, none of the parents should be denied the visitation right. Any negation of this vital right must be backed by cogent reasons.

In the instant case, the Court said that the argument of the petitioner that the visitation right of the respondent should be negated cannot be accepted merely on the ground that the latter failed to provide interim maintenance or litigation expenses to the former. The Bench clarified that visitation right is placed on a different pedestal which cannot be thwarted basing upon such technical grounds.

As a corollary, the Court found no ground to upset the decision of the trial Court in the impugned order which granted visitation right to the respondent. Accordingly, the petition was dismissed.

Case Title: X v/s Y

Counsel for the Petitioner: Senior advocate Bibekananda Bhuyan, advocate Sujata Sahoo

Counsel for the Respondent: Advocate Lalit Kumar Moharana

Citation: 2025 LiveLaw (Ori) 74

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