AMYRA DWIVEDI (MINOR) THROUGH HER MOTHER, SMT. POOJA SHARMA versus ABHINAV DWIVEDI AND ANOTHER on 6 March 2020

1. Leave granted.

2. This appeal arises out of an order dated 13 May 2019 passedby the High Court of Judicature at Allahabad, Lucknow Bench, in HabeasCCorpus No.24675 of 2018, whereby the petition filed by the appellant(the mother) for custody of her child was dismissed, but she was grantedvisitation rights in the following terms:

“(I) The petitioner (Smt. Pooja Sharma) is granted visiting rightsto meet her daughter, who is presently residing with the oppositeDparty No.1. The meeting of the petitioner with her daughter(corpus) would be at the place as agreed by the parties and incase of their inability to agree on any place such meeting shall beheld at the office of the Secretary, District Legal Services Auhtority,Lucknow during office hours i.e. 10:00 am to 4:00 pm for twohours on a day and time agreed into by the parties or as directedEby the Secretary, District Legal Services Authority, Lucknow, onany day preferably Saturday, once in a month.

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(II) During meeting hours, the petitioner would be free to giveany kind of gifts to her daughter of her choice and liking and thesame would not be objected to by the opposite party No.1.FHowever, the petitioner will not take the corpus with her anywherebeyond the boundaries of the Office of Secretary, District LegalServices Authority, Lucknow. Such meeting will be held in asecured atmosphere and it shall be the duty of the Secretary,District Legal Services Authority, Lucknow to provide cordialatmosphere and security to the parties.”G

3. We are not at all happy with the manner in which the visitationrights have been granted in the present case. The High Court has directedthat the mother can meet the child for two hours once a month, that too,in the Office of Secretary, District Legal Services Authority, Lucknowor at a place, mutually agreed to by the parties and in case of disagreement,H

AMYRA DWIVEDI (MINOR) THR. HER MOTHER, SMT. POOJASHARMA DWIVEDI v. ABHINAV DWIVEDI [DEEPAK GUPTA, J]

before the District Legal Services Authority, Lucknow. However, it hasbeen ordered that the meeting would be held in a secured atmosphereand it will be the duty of the Secretary to provide cordial atmosphereand security to the parties.

4. In Yashita Sahuv. State of Rajasthan2020 AIR 577, thisCourt held that the welfare of the child is of paramount consideration inmatters relating to custody of children. In this context, we may refer toparagraph 22 of the judgment, which reads as follows:

“A child, especially a child of tender years requires the love,affection, company, protection of both parents. This is not onlythe requirement of the child but is his/her basic human right. Justbecause the parents are at war with each other, does not meanthat the child should be denied the care, affection, love or protectionof any one of the two parents. A child is not an inanimate objectwhich can be tossed from one parent to the other. Every separation,every re-union may have a traumatic and psychosomatic impacton the child. Therefore, it is to be ensured that the court weighseach and every circumstance very carefully before deciding howand in what matter the custody of the child should be sharedbetween both the parents. Even if the custody is given to oneparent the other parent must have sufficient visitation rights toensure that the child keeps in touch with the other parent anddoes not lose social, physical and psychological contact with anyone of the two parents. It is only in extreme circumstances thatone parent should be denied contact with the child. Reasons mustbe assigned if one parent is to be denied any visitation rights orcontact with the child. Courts dealing with the custody mattersmust while deciding issues of custody clearly define the nature,manner and specifics of the visitation rights.”

5. When a court grants visitation rights, these rights should begranted in such a way that the child and the parent who is grantedvisitation right, can meet in an atmosphere where they can be like parentand child and this atmosphere can definitely not be found in the office ofDistrict Legal Services Authority. That atmosphere may be found in thehome of the parent or in a park or a restaurant or any other place wherethe child and the parent are comfortable.

6. As far as the present case is concerned, the admitted facts arethat the child lives with her grand parents in Lucknow, U.P. and the A

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Afather is working in National Capital Region (NCR). The child attendsschool and is in lower KG. We, therefore, issue the following directionwith regard to the visitation and contact rights:

(I)The mother shall be entitled to meet the child both on theSaturdays and Sundays for a period of eight weeks at theBfirst instance. She will take the child from the grand parents’home at 10:00 am and drop her back at 5:00 pm in theevening. In case, the Saturday is a school working day, thenthe mother will be entitled to pick the child up from schooland stay with her till 8:00 pm and then drop her to the grandparents’ home.C

(II)After the period of eight weeks is over and the child becomesfamiliar with her mother and gets to know her better, themother will be entitled to keep the child on weekends from10:00 am in the morning on Saturday till 5:00 pm in theeventing on Sunday. In case, Saturday is a school workingDday, the mother will pick up the child immediately after schooland drop her back to the grand parents’ house at 5:00 pm inthe evening on Sunday.

(III)On festivals, such as, Holi, Diwali, etc., the child may spendtime with the grand parents in the morning, but in the evening,Eshe will be permitted to go with the mother for at least fourhours on every festival.

(IV)As far as summer vacations are concerned, if the vacationsare for more than fifteen days, the mother will be entitledto take the child for seven days, but only after 30[th] April. InFcase the vacations are for more than one month, then shewill be entitled to keep the child for fifteen days. During thevacations, the mother can take child out for holidays to anyplace wherever she feels comfortable.

(V)On the birthday of the child, we hope and expect that bothGthe parents should spend some time together with the childleaving their differences apart, but if they cannot do so,then the mother can have custody of the child in the firsthalf of the day for at least eight hours and the grand parentsin the second half.

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(VI) We permit the mother to attend all the school functions,Asuch as, annual day, foundation day, sports day or parentsteacher meeting. We direct the school concerned to ensurethat on the production of the order of this Court, the nameof the appellant be entered into the school records as motherof the child and she be called for all the functions whenBother parents are called. She shall also be apprised aboutthe progress of the child in the school.

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(VII) As far as the contact rights are concerned, since the motherand child live in same town, the mother can either makevideo call or telephone call with the child every day for tenCminutes between 7:30 pm to 8:30 pm in the evening.

7. We dispose of this appeal with the aforesaid directions.

8. We make it clear that the appellant wife is at liberty to movethe appropriate court for custody of the child under the Guardians andWards Act 1890. We further direct that in line of the order which wehave passed today, if the need arises, the court concerned can increasethe period of visitation rights of the mother, pending disposal of the custodypetition.

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Devika Gujral

Appeal disposed of.

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