Full Judgment Text
CA 2067/2020
1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.2067 OF 2020
(Arising out of S.L.P.(C) No.15215 of 2019)
Amyra Dwivedi (Minor) Through Appellant(s)
her Mother, Smt. Pooja Sharma Dwivedi
Versus
Abhinav Dwivedi and Another Respondent(s)
J U D G M E N T
Deepak Gupta, J
1 Leave granted.
2 This appeal arises out of an order dated 13 May 2019
passed by the High Court of Judicature at Allahabad, Lucknow
Bench, in Habeas Corpus No.24675 of 2018, whereby the
petition filed by the appellant (the mother) for custody of
her child was dismissed, but she was granted visitation
rights in the following terms:
Signature Not Verified
Digitally signed by
CHETAN KUMAR
Date: 2020.03.17
16:37:46 IST
Reason:
“(I) The petitioner (Smt. Pooja Sharma) is granted
visiting rights to meet her daughter, who is
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presently residing with the opposite party No.1. The
meeting of the petitioner with her daughter (corpus)
would be at the place as agreed by the parties and in
case of their inability to agree on any place such
meeting shall be held at the office of the Secretary,
District Legal Services Auhtority, Lucknow during
office hours i.e. 10:00 am to 4:00 pm for two hours
on a day and time agreed into by the parties or as
directed by the Secretary, District Legal Services
Authority, Lucknow, on any day preferably Saturday,
once in a month.
(II) During meeting hours, the petitioner would be
free to give any kind of gifts to her daughter of her
choice and liking and the same would not be objected
to by the opposite party No.1. However, the
petitioner will not take the corpus with her anywhere
beyond the boundaries of the Office of Secretary,
District Legal Services Authority, Lucknow. Such
meeting will be held in a secured atmosphere and it
shall be the duty of the Secretary, District Legal
Services Authority, Lucknow to provide cordial
atmosphere and security to the parties.”
3. We are not at all happy with the manner in which the
visitation rights have been granted in the present case. The
High Court has directed that the mother can meet the child
for two hours once a month, that too, in the Office of
Secretary, District Legal Services Authority, Lucknow or at a
place, mutually agreed to by the parties and in case of
disagreement, before the District Legal Services Authority,
Lucknow. However, it has been ordered that the meeting wwould
be held in a secured atmosphere and it will be the duty of
the Secretary to provide cordial atmosphere and security to
the parties.
4. In Yashita Sahu v. State of Rajasthan 2020 AIR 577,
this Court held that the welfare of the child is of paramount
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consideration in matters relating to custody of children. In
this context, we may refer to paragraph 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 only the requirement of the
child but is his/her basic human right. Just because
the parents are at war with each other, does not mean
that the child should be denied the care, affection,
love or protection of any one of the two parents. A
child is not an inanimate object which can be tossed
from one parent to the other. Every separation, every
re-union may have a traumatic and psychosomatic
impact on the child. Therefore, it is to be ensured
that the court weighs each and every circumstance
very carefully before deciding how and in what matter
the custody of the child should be shared between
both the parents. Even if the custody is given to one
parent the other parent must have sufficient
visitation rights to ensure that the child keeps in
touch with the other parent and does not lose social,
physical and psychological contact with any one of
the two parents. It is only in extreme circumstances
that one parent should be denied contact with the
child. Reasons must be assigned if one parent is to
be denied any visitation rights or contact with the
child. Courts dealing with the custody matters must
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 be granted in such a way that the child and the parent
who is granted visitation right, can meet in an atmosphere
where they can be like parent and child and this atmosphere
can definitely not be found in the office of District Legal
Services Authority. That atmosphere may be found in the home
of the parent or in a park or a restaurant or any other place
where the child and the parent are comfortable.
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6. As far as the present case is concerned, the
admitted facts are that the child lives with her grand
parents in Lucknow, U.P. and the father is working in
National Capital Region (NCR). The child attends school and
is in lower KG. We, therefore, issue the following direction
with regard to the visitation and contact rights:
(I) The mother shall be entitled to meet the child both on
the Saturdays and Sundays for a period of eight weeks
at the first instance. She will take the child from the
grand parents’ home at 10:00 am and drop her back at
5:00 pm in the evening. In case, the Saturday is a
school working day, then the mother will be entitled to
pick the child up from school and stay with her till
8:00 pm and then drop her to the grand parents’ home.
(II) After the period of eight weeks is over and the child
becomes familiar with her mother and gets to know her
better, the mother will be entitled to keep the child
on weekends from 10:00 am in the morning on Saturday
till 5:00 pm in the eventing on Sunday. In case,
Saturday is a school working day, the mother will pick
up the child immediately after school and drop her back
to the grand parents’ house at 5:00 pm in the evening
on Sunday.
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(III) On festivals, such as, Holi, Diwali, etc., the child
may spend time with the grand parents in the morning,
but in the evening, she will be permitted to go with
the mother for at least four hours on every festival.
(IV) As far as summer vacations are concerned, if the
vacations are for more than fifteen days, the mother
will be entitled to take the child for seven days, but
th
only after 30 April. In case the vacations are for
more than one month, then she will be entitled to keep
the child for fifteen days. During the vacations, the
mother can take child out for holidays to any place
wherever she feels comfortable.
(V) On the birthday of the child, we hope and expect that
both the parents should spend some time together with
the child leaving their differences apart, but if they
cannot do so, then the mother can have custody of the
child in the first half of the day for at least eight
hours and the grand parents in the second half.
(VI) We permit the mother to attend all the school
functions, such as, annual day, foundation day, sports
day or parents teacher meeting. We direct the school
concerned to ensure that on the production of the order
of this Court, the name of the appellant be entered
into the school records as mother of the child and she
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be called for all the functions when other parents are
called. She shall also be apprised about the progress
of the child in the school.
(VII) As far as the contact rights are concerned, since the
mother and child live in same town, the mother can
either make video call or telephone call with the child
every day for ten minutes 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 move the appropriate court for custody of the
child under the Guardians and Wards Act 1890. We further
direct that in line of the order which we have passed today,
if the need arises, the court concerned can increase the
period of visitation rights of the mother, pending disposal
of the custody petition.
....................J.
[Deepak Gupta]
....................J.
[Aniruddha Bose]
New Delhi
March 06, 2020
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ITEM NO.26 COURT NO.15 SECTION XI
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Petition(s) for Special Leave to Appeal (C) No.15215/2019
(Arising out of impugned final judgment and order dated 13-05-2019
in HC No. 24675/2018 passed by the High Court of Judicature at
Allahabad, Lucknow Bench)
AMYRA DWIVEDI (MINOR) THROUGH HER MOTHER Petitioner(s)
POOJA SHARMA DWIVEDI
VERSUS
ABHINAV DWIVEDI & ANR. Respondent(s)
Date : 06-03-2020 This petition was called on for hearing today.
CORAM :
HON'BLE MR. JUSTICE DEEPAK GUPTA
HON'BLE MR. JUSTICE ANIRUDDHA BOSE
For Petitioner(s) Mr. Vishwajit Singh, Adv.
Mr. Pankaj Singh, Adv.
Ms. Ridhima Singh, Adv.
Ms. Vijaya Singh, Adv.
Mr. Vignesh Singh, Adv.
Ms. Veera Kaul Singh, AOR
For Respondent(s) Mr. Shail Kumar Dwivedi, AOR
Mr. Siddharth Krishna Dwivedi, Adv.
Ms. Vibha Dwivedi, Adv.
Ms. Nidhi Dwivedi, Adv.
Mr. Andleeb Naqvi, Adv.
Ms. Garima Prashad, AOR
UPON hearing the counsel the Court made the following
O R D E R
Leave granted.
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The appeal is disposed of in terms of the signed
reportable judgment.
Pending application(s), if any, stand disposed of.
(Chetan Kumar) (Parveen Kumari Pasricha)
A.R.-cum-P.S. Court Master
(Signed reportable judgment is placed on the file)