Child Custody

Case Study

Visitation cannot be made possible by an order of Court when children are reluctant to meet the Mother. Visitation Right to Mother would be adverse to the interest of the children. Visitation Rights are distinct  from custody or interim custody orders. In Arun Sharma VS Roxann Sharma, 18 Sep 2014 The petitioner has filed the said Matrimonial Petition for permanent custody of the minor child and also for temporary injunction to restrain the respondent from taking forcible custody of the child. The petitioner is the husband of the respondent. He claimed that he is a native of Mumbai and citizen of India whereas the respondent is American citizen. They were married in the year 2009, in U.S.A. and out of the wedlock, the respondent delivered a boy on 18/04/2012 in U.S.A., who is named Thalbir Sharma. The petitioner and the respondent thereafter returned to India and were residing in Mumbai, in the company of the mother of the petitioner. Thereafter, there arose differences between the two and they started leaving separately. The child is in the custody of the petitioner. In the said Matrimonial Petition, the respondent filed an application dated 31/10/2013 for interim custody of the minor child. The petitioner filed reply. Upon hearing the parties, the trial Court passed the order dated 31/01/2014 by which, pending final disposal of the petition under Section 6 of the Act on merits, the respondent was granted interim custody of the minor child Thalbir sharma and the petitioner was assured with visiting rights to the child. The said order was challenged by the petitioner in this High Court by way of Writ Petition No. 79 of 2014. By Judgment dated 02/08/2014, the said Writ Petition was disposed of. The impugned order dated 31/01/2014 was quashed and set aside. It was ordered that the custody of the child shall continue with the petitioner subject to the respondent getting visitation rights in the manner referred to in the order. The trial Court was directed to proceed to dispose of the Petition filed by the petitioner as well as the Counter Claim as expeditiously as possible in the light of the observations made in the said order after hearing the parties in accordance with law. It was observed that the trial Court shall not be influenced by any observations made by this Court while deciding the petition filed by the petitioner and the respondent on its own merits. In the present case before this Court, the custody of the child was ordered to continue with the petitioner subject to the respondent getting frequent visitation rights tentatively for at least 3 days in a week. The background mentioned in the Judgment dated 02/08/2014 would make it clear that it was never intended to hand over continuous exclusive custody of the child to the respondent, for three days. This judgment makes a clear demarcation between child custody and visitation rights to see the child.