'With Time Bond May Develop': Andhra Pradesh HC Grants Visitation Rights To Father Whose Son Was Witness Against Him In Mother's Murder Case

Noting the father's acquittal in the criminal trial, a division bench of Justice Ravi Nath Tilhari and Justice Challa Gunaranjan held it appropriate to grant conditional visitation rights which will enable the father to get an “opportunity to win over the love and affection of the child, by his acts, conduct behaviour and sharings.” It held:

“The misunderstandings or wrong impressions, may be for any reason, tutoring, living separately for long or otherwise, may get removed. The visitation rights can be allowed with restrictions and imposing conditions in the hope that, with the passage of time the bond between the father and son, may develop. We are of the view that after acquittal the father, ordinarily, should not be deprived of the love and affection of the child or of his company, restricted and supervised…”

In another case involving a family dispute, the Kerala High Court last week granted bail to a 91-year-old man accused of attacking his 88-year-old wife with a knife where  she had sustained serious injuries. The court granted the relief after observing that a great marriage is not when the 'perfect couple' comes together but when an imperfect couple learns to enjoy their differences, adding that "as we grow older, our love for each other deepens”. 

Background

The father filed an appeal under Section 47 of the Guardian & Wards Act seeking custody of his minor son (ward) from the ward's maternal grandfather, grandmother and uncle (Respondents 1, 2, 3) and challenging the order of Principal District Judge which denied him custody. 

Owing to the death of the appellant's wife (deceased), the wife's family registered a case against the appellant and his parents under Sections 498-A, 302 and 201 read with Section 34 of IPC, and subsequently took the control and custody of the minor son. 

During the criminal trial, it was alleged that the deceased wife was subject to demand of dowry and physical and mental harassment and that she was murdered. The son also deposed against the appellant.  The appellant was, however, acquitted in the criminal trial. The acquittal was appealed against and was pending at the time of adjudication of the custody case by the High Court.

In the custody case, the Principal District Judge in its order held that the appellant was not entitled to custody of the minor son as the he could not be detached from his maternal-grandparents and it was also not possible for him to live amicably with the appellant, considering he deposed against his father in the trial, which, the trial court  held, impacted the mind. The son had also refused to go along with the father on multiple occasions, it had noted. 

Findings

On custody

Keeping the welfare of the child as paramount, the Court firstly refrained from determining the legality of the order of the Sessions Court which had doubted the child's testimony and acquitted the appellant. It said:

“Though, the learned Sessions Court has doubted the presence of the child at the time of the incident, and thus to be an eye witness and did not rely on the child testimony for want of corroboration. Its appreciation of evidence may be correct, but still we are not inclined to weigh this factor in favour of grant of custody to the father. The child may or may not be the eye witness of the incident and may or may not have deposed correctly or truthfully or deposed due to tutoring, but still the fact remains that the child actually deposed under Section 161 Cr.P.C in investigation, under Section 164 Cr.P.C before the Magistrate, and also as a witness as P.W.8 in the Sessions Court, against the appellant-father implicating him to have murdered his wife (mother of the child) and the appeal against the order of acquittal is pending.”

Additionally, with respect to the contention of the respondents that the appellant had not visited the ward for years and did not care for his welfare, the Court held,

“…it is obvious that when the criminal case filed by the respondents was pending against the appellant and the ward was in the custody of the respondents, the appellant could not be expected to visit the respondents to see his child. What he could do, he did by taking recourse to the legal proceedings. We therefore, do not find force in the submission of the respondents‟ counsel that the appellant did not show any interest in the child, for his custody or to meet him or that there was want of bonafides.”

However, the Court referred to a copy of a photo of the minor boy which was officially affixed to the appeal, which showed injury marks around the son's neck, suggesting strangulation. The Court observed that since there was proximity between the date of the incident and of the photographs, the possibility of strangulation was not ruled out by the Family Court. Without commenting on the authenticity of the strangulation marks or the observations of the Family Court, the photos of the minor boy were considered relevant, which the Court held “prima facie goes against the appellant for giving custody to him and being considered as against the welfare of the minor.”

Furthermore, concerning the issue of the ward not preferring to go with the appellant, the Court did not consider it appropriate to call the minor boy to know his preference as he had initially expressed his unwillingness to see the father, stating that the father killed his mother and that he was comfortable with the respondents. 

It said that while the appellant “may be in a position to maintain the child and to look after his welfare and may be in a better position as was argued, but keeping in view the overall factors, and being concerned about the safety and security of the child, in our view it would not be in the welfare of the child at least, at present, to hand over his custody to the appellant. The impression in the child's mind for the last seven years is against his father.”

The court thus refused to grant custody to the father and upheld the trial court order on this point.

On visitation rights

However, the High Court, in order to sustain the bond between the appellant and the ward, was inclined towards granting visitation rights to the appellant. It placed reliance on the case of Yashita Sahu v. State of Rajasthan (2020) where Supreme Court said that it is a human right of the child to have the love and affection of both the parents and it is upon the Court to ensure that the child is not deprived of the love and care of the non-custodial parent.

While the assertions of the wife's family about the child deposing against the father and the criminal appeal being pending were relevant factors, the Court held that the appellant and respondents must maintain mutual respect and collaboration for the well-being of the ward. Even though the ward had no love and affection left towards his father, the Court held that restricted and conditional visitation rights may remove these misunderstandings or wrong impressions which may have arisen due to tutoring or living separately for long.

The Court thus allowed visitation rights to the appellant subject to certain conditions. It dismissed the appeal for custody. 

Case Title: X v. Y and others

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