Rights of child sacrificed upon altar of parents' egos in matrimonial cases: Delhi Court

In matrimonial disputes, the natural rights of a child are sacrificed upon the altars of inflated egos of the warring parents, a Delhi Court said while allowing a woman’s plea for visitation rights with respect to her minor son [N v. N]..Additional Sessions Judge Dharmender Rana observed,"In my considered opinion, a child as a matter of right is naturally entitled to love, care, support and affection of both the parents. However, unfortunately, in matrimonial disputes the natural right of a child is sacrificed upon the altars of inflated egos. The court, being parens patriae, is duty bound to protect the welfare and interest of a minor child, whose parents are unfortunately involved in a matrimonial dispute. The duty cast upon the courts is very sacrosanct and onerous and the issue of custody/visitation rights cannot be perfunctorily decided in haste.".The order was passed in a woman’s plea seeking visitation rights of her child in the magisterial court. The case stemmed from a domestic violence case she had filed against her estranged husband.She contended that she had raised the child since his birth till 2015, when he turned four-and-a-half years old. It was argued that the child was not old enough to understand the influence he was under at his father’s home - a fact she said was not considered by the magisterial court. The child, she said, was given only a minute to express his free wish on the basis of which the magisterial court dismissed her plea.The husband, on the contrary, argued that the woman had abandoned their child for the past five years, and was therefore denied interaction with the minor child by the magisterial court. He accused her of approaching the court without “clean hands” besides attempting to sustain her claim on “false and frivolous” grounds..After adjudicating that the plea was maintainable, the Court noted that the trial court had decided against the woman on the basis of her interaction with the minor child, coupled with the fact that being a mother, she had lived separately for the last five years.The Court, however, was of the opinion that a child during his growing up years, needed the care of both the mother and the father for his mental, physical and spiritual growth.“Denying him the love and care of either of the parents would leave an irreparable scar upon the soul of the hapless child. It is only in exceptional circumstances, when the interaction of the child with either of the parents is injurious to his physical or mental well being should a father or mother be denied the right of visitation or interaction with the child,” it stated..In the present case, the trial court was stated to have perhaps been “swayed” by the fact that for the past five years, the petitioner was living separately from her minor child.“There cannot be any quarrel with the proposition that the wish of even a minor child should not be brushed aside lightly while deciding custody issues. However, the courts must dutifully remain continuously conscious of the tender age of the minor child and his limited capacity to make a rational and informed choice,” observed the Court..It was further noted that warring couples continuously “feed the minor child with all kinds of negative informations” against each other, thereby, “severely crippling the semi-developed mental faculties” of the child to reach a rational decision.The trial court was said to have not given any reason, let alone convincing ones, to show how and why the interaction of the mother would have an adverse effect on the child."The child is barely about 11 years old and at such tender age denying him motherly love and care would be violative of his Human Rights. Though, it can be argued that since the petitioner is living away from her child for past about five years and child is not dependent upon her, therefore, her interaction with the child would cause some complications for every affected individual. However, the subtle distinction between 'compulsion' or 'choice' cannot be altogether obliterated,” it noted.Unable to convince itself with the “cryptic order” of the trial court as to how denial of visitation rights to the petitioner would be healthy for the minor child, the Court set aside the order.“The impugned order is hereby set aside. Trial court is accordingly requested to work out the modalities while granting the visitation rights to the petitioner. The criminal revision accordingly stands allowed,” it held..[Read Order]