Father can seek visitation rights to child under DV Act if child is in mother's custody: Bombay HC

In a recent ruling, Justice Prakash D. Naik of the Bombay High Court on November 2 said, “A father can seek visitation rights to his child under the Domestic Violence (DV) Act if the child is in the mother's custody”, thereby dismissing an application filed by a woman challenging a sessions court order granting visitation rights to her estranged husband.

Justice Naik upheld the Sessions Court order which allowed an application filed by the father under Section 21 of the DV Act granting visitation rights to his child.

Earlier, on January 5, 2018, Metropolitan Magistrate, 31st Court, Vikhroli, Mumbai, had allowed an application filed by the father. The father was allowed to exercise his visitation rights and keep custody of his child for 48 hours for twice in a month, i.e., on every second and fourth Friday from 6 pm to Sunday 6 pm, i.e., on alternate weekends.

At the High Court, highlighting that only an aggrieved woman can seek custody or visitation of her child according to Section 21 of the Protection of Women from Domestic Violence Act, the woman thus stated that the Sessions Court had erred in passing its order. The woman further stated that a man has no right to independently prefer an application under Section 21 of the Act for custody orders but could have approached the Court under Section 26 of the Hindu Marriage Act seeking custody of the child.

On the other hand, the husband stated that he was not seeking permanent custody of the child at this stage but was only seeking visitation rights.

In this regard, Justice Naik stated that if the interpretation advanced by the wife is accepted, then it would defeat the whole purpose of the Protection of Women from Domestic Violence Act.

Thereafter, the court said, “It is worthwhile to note that the Act was enacted to prevent the occurrence of domestic violence in the society and keeping in view that several protection orders, including the safety of the aggrieved person and the child, have been contemplated to be passed.”

The court said, “In such situation if the interpretation given on behalf of the wife aggrieved parties accepted it will render the provision incomplete as in case where wife – aggrieved party – seeks custody of the child, if the child is in custody of the husband and an order of custody is passed in favor of the aggrieved party, visitation right can be granted to the husband. But if custody lies with the wife – aggrieved party, then the husband will have no remedy of visitation right if the interpretation as contemplated by the wife – aggrieved party – is given effect to, and thereby, it can easily be said that interpretation given by the aggrieved party – wife will never advance the cause of the child.”

The court further added, “On the other hand, if it is held that the husband, in absence of any application for grant of custody, can maintain his application for visitation right will advance the object of the provision as in case of child being in custody of the husband, application for custody can be filed by the wife wherein the husband can have visitation right if order is of custody of child passed in favor of the aggrieved party. In other situation, when the custody of the child lies with the wife, there would be no occasion for the wife for filing an application for custody. In that situation, husband will have remedy to have visitation right by filing application to that effect.”

Observing that child visitation guidelines are to ensure that the child gets to spend equal or substantial time with both parents, the court concluded, "Paramount consideration shall be welfare of the child. The court's endeavor should be to ensure that the child gets love and affection of both parents. A smooth and proper development of the child requires affection from both parents."