Parents cannot use divorce settlements to cut a child off from either parent, Delhi High Court says

The parties’ marriage was dissolved by mutual consent following settlements made in proceedings under the Protection of Women from Domestic Violence Act, 2005.

The child’s custody remained with the mother; the settlements provided for the father to meet the child, with the supplementary settlement describing the visitation arrangement as continuing only until the divorce decree.

The father later filed a petition under Section 12 of the Guardians and Wards Act, 1890.

On 7 August 2025, the Family Court granted him visitation on the first and third Saturdays of each month, from 3:00 p.m. to 5:00 p.m., at the Children Room, Family Court, Rohini, and provided for rescheduling in case of exigency.

The mother appealed that order.

The High Court condoned delays of 130 days in filing and 125 days in re-filing the appeal.

Whether the Family Court’s order granting the father visitation on the first and third Saturdays of each month should be set aside.

Whether the parties’ settlement, including its limitation of the visitation arrangement to the period before the divorce decree, could prevent the court from granting or maintaining visitation in the child’s interests.

Under the Guardians and Wards Act, 1890, orders concerning a child’s custody and welfare are governed by the child’s best interests and remain subject to the court’s continuing jurisdiction; a consent arrangement does not make such orders immutable.

In Rosy Jacob v. Jacob A. Chakramakkal, (1973) 1 SCC 840, the Supreme Court held that custody orders are temporary in nature and may be varied as circumstances and the child’s welfare require.

In Yashita Sahu v. State of Rajasthan, (2020) 3 SCC 67, the Supreme Court recognised the child’s interest in maintaining the love, affection and contact of both parents, and held that courts should provide meaningful visitation and, where appropriate, contact rights; denial of contact requires reasons.

The High Court further applied the parens patriae principle: parents’ agreements cannot be accepted where they operate to the child’s prejudice.

The High Court treated the child’s welfare, rather than the terms or duration of the parties’ settlements, as controlling.

It held that parents cannot by mutual agreement deprive a child of a parent’s presence and that custody or visitation arrangements remain open to judicial reconsideration as the child’s needs change.

Applying Yashita Sahu, the Court emphasised the child’s interest in retaining a relationship with both parents and found no basis to fault the Family Court’s limited, scheduled visitation arrangement.

The appeal and pending applications were dismissed.