Current Affairs

Source: Allahabad High Court

Why in News?

Recently, while considering the visitation rights of a father who filed petition to meet his child in mother’s custody bench of Justice Dr. Yogendra Kumar Srivastava held that court is not inclined to exercise its extraordinary prerogative jurisdiction for issuing a writ of habeas corpus in the present case, particularly when the relief sought is restricted to visitation rights.

• The aforesaid observation was made in the matter of Mithilesh Maurya and Another v. State of UP.

What was the Background of Mithilesh Maurya And Another v. State of UP Case?

• The petitioner no. 1 is the husband, and the respondent no. 4 is his wife.
• The respondent no. 4 (wife) left her matrimonial home on 19^th August 2018 along with their infant daughter of about one month old at that time.
• Proceedings under Sections 9 and 13 of the Hindu Marriage Act, 1955, maintenance proceedings under Section 125 of the Code of Criminal Procedure, 1973 (CrPC) and a criminal case are pending between the parties.
• The petitioner no. 1 (husband) was seeking visitation rights to meet his minor daughter (petitioner no. 2) in the present writ petition.
• The respondent no. 4 (wife) has been in continuous custody of the minor daughter since August 2018 after leaving the matrimonial home.

What were the Court’s Observations?

• The court held that a writ of habeas corpus is an extraordinary remedy and not a matter of course, especially when sought against a parent for the custody of a child.
• The court observed that in matters of custody, the welfare of the child is of paramount consideration, and the court's role is guided by the principle of 'parens patriae jurisdiction'.
• The court noted that proceedings related to matrimonial disputes are pending before the Family Court, and the appropriate remedy for seeking visitation rights would be to move an application before the Family Court.
• The writ petition was dismissed, with the observation that the findings are prima facie and without prejudice to the rights and contentions of the parties in the proceedings before the court concerned.

What is the Concept of Visitation Rights under Law?

• About:
  • Visitation rights, also known as access rights or custodial rights, refer to the legal provisions that govern the right of a parent to visit and spend time with their child, even if the child is living with the other parent or a legal guardian.
  • These rights are determined during divorce proceedings or in cases where the parents are separated and living apart.
  • The primary objective of granting visitation rights is to ensure that the child maintains a healthy and meaningful relationship with both parents, as long as it is in the best interests of the child.
• Points of Consideration While Granting Visitation Rights:
  • Visitation rights are governed by various laws, including the HMA, the Special Marriage Act, 1954, the Guardians and Wards Act, 1890, and the Hindu Minority and Guardianship Act, 1956.
  • The primary consideration in determining visitation rights is the best interests of the child.
  • Both parents have an equal right to visitation, subject to the court's discretion based on the specific circumstances of the case.
  • In certain cases, such as matters of domestic violence or concerns about the child's safety, the court may order supervised visitation, where a third party is present during the visits.

What is the Provision Related to Custody of Child under Hindu Marriage Act, 1955?

Section 26 of HMA: Custody of children.-

• Interim Orders and Provisions in Decree:
  • In any proceeding under HMA, the court may, from time to time, pass such interim orders and make such provisions in the decree as it may deem just and proper with respect to the custody, maintenance and education of minor children, consistently with their wishes, wherever possible.
• Post-Decree Orders and Provisions:
  • The court may, after the decree, upon application by petition for the purpose, make from time to time, all such orders and provisions with respect to the custody, maintenance and education of such children as might have been made by such decree or interim orders in case the proceeding for obtaining such decree were still pending.
• Modification of Orders and Provisions:
  • The court may also from time to time revoke, suspend or vary any such orders and provisions previously made.
• Proviso for Maintenance and Education:
  • The section provides that the application with respect to the maintenance and education of the minor children, pending the proceeding for obtaining such decree, shall, as far as possible, be disposed of within sixty days from the date of service of notice on the respondent.