VISITION RIGHTS OF FATHER
REMEDY UNDER PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT 2005
Author: Utkarsh Srivastava
Advocate-on-Record, Supreme Court of India
INTRODUCTION
Indian legal jurisprudence gives welfare of the child the paramount importance before anything. The overall development of the child is dependent not only on the love and care of the mother. It is also dependent upon the love and affection provided to the child by the father. Therefore, legislature has recognised Visitation Rights of Father in cases where the custody of child is with the mother.
Although, Section 26 of the Hindu Marriage Act gives right to the father or the mother to seek an order from the court for custody of the child. However, it does not recognize the visitation rights to be given to the other person whom the custody has not been granted. It merely talks about the custody, maintenance and education of minor children.
In such cases courts step in. Upon appropriate application, it may grant visitation rights. In most cases, the custody of the child is granted to the mother and upon application visitation rights are given to the father.
- GUARDIANSHIP AND CUSTODY OF THE CHILD
Hindu Minority and Guardianship Act 1956 has made father the natural guardian of a minor child. Mother becomes natural guardian only in the absence of the father. However, it is also clarified that custody of the minor upto the age of 5 years shall only be with the mother.
It is also made mandatory for the courts to give welfare of the minor child the paramount consideration while appointing a person as the guardian of the minor child. A person shall not be given guardianship if it is prejudicing the welfare of the child.
A person who is appointed as the guardian of a minor child also gets the custody of the child. However, while keeping in mind the welfare of the child, visitation rights are given by the courts to the other person.
For becoming a guardian and getting the custody of the child, an application needs to be filed before the Family Courts under the Guardianship and Wards Act 1890.
- VISITION RIGHTS OF FATHER UNDER PROECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT 2005
Protection of Women from
Domestic Violence Act 2005 as the name suggests was enacted with the aim to protect the women from domestic violence as well as to provide an effective and immediate remedy to them for rehabilitation purposes. Section 21 of the provides that a mother who is seeking protection can also file an application for temporary custody of the child. In such cases, visitation rights will be given to the father.
However, it does not talk about those cases where the custody of the child is already with the mother. In such cases, no occasion will arise for the mother to file an application for custody of the child, because it is already with her.
What will happen to the visitation rights of the father? Will he have to file a separate case under Guardianship and Wards Act 1890 as remarked above? Or
Does he have a right to file to an application for visitation rights under Section 21 of the Protection of Women from Domestic Violence Act 2005?
The answer to the above question is both yes and no. Since, the law on this point is yet unsettled and the same is pending for adjudication before the Hon’ble Supreme Court of India. However, this does not mean you as a father have lost all rights of visitation. There are a number of judgments passed by different Hon’ble High Courts which take a harmonious view of Section 21 of the Protection of Women from Domestic Violence Act 2005 and recognize the right of the father to file an application seeking visitation rights under the Act of 2005 even if no application for custody has been filed by the mother.
The judgment on the point has been passed by Hon’ble High Court of Bombay in , wherein the Hon’ble High Court while following the judgment passed by the Hon’ble High Court of Manipur at Imphal in Smt. Huidrom Ningol Maibam Ongbi Omila Devi v. Shri Inaobi Singh Maibam, 2016 SCC OnLine Mani 169 held that Section 21 is amenable to two interpretations in such event only that interpretation which advances the object of the provision can be accepted.
The provision’s objective is the safety and welfare of the child, which includes love and affection of the father, unless the court thinks otherwise due to the antecedents and actions of the father which can harm the child.
It was thus held that in cases where the custody already lies with the wife, then the husband will have no remedy of visitation right, which in turn will never advance the cause of the child. On the other hand, if the husband is allowed to file an application for visitation right, it will help in advancing the welfare of the child, which is the main objective of the provision under Section 21 of the Protection of Women from Domestic Violence Act 2005.
- CONCLUSION
Hence, at present, in the absence of any stay from the Hon’ble Supreme Court of India, it can be conveniently concluded that a father has a remedy to seek visitation right under the Protection of Women from Domestic Violence Act 2005 apart from filing an application under Guardianship and Wards Act 1890 to seek custody of the child.
READ MORE ABOUT LEGAL REMEDIES ON DIVORCE.
THERE ARE MANY MORE COMPLICATIONS IN DIVORCE CASES LIKE ALIMONY, MAINTENANCE, CUSTODY, TRANSFER CASES AND CRUELTY CASES, CRIMINAL CASES FOR DOMESTIC VIOLCENCE.
READ OUR ARTICLE ON EFFECTIVE REMEDIES UNDER PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT 2005