AI Structured Summary
Not yet generated for this judgment
Judgment
S.K. Mishra, J.
The present Writ Petition has been preferred by the Petitioner-husband, being aggrieved by the order dated 19.12.2024 passed in C.P. No.05 of 2024. Vide the said order his application dated 19.11.2024, filed under Section 7 of the Family Courts Act, read with Section 26 of the Hindu Marriage Act, 1955, with a prayer to permit him to have casual custody intermittently as well as permission to visit the minor daughter, namely, „Divyanshi‟ at her maternal place, where she is presently residing, stood rejected.
As is revealed from the record, despite sufficient opportunity having been granted, the Opposite Party-wife failed to appear in the present proceeding. That apart, pursuant to the direction of this Court, the Learned Judge, Family Court, Jajpur, vide letter dated 25.11.2025, reported that a copy of the order dated 03.09.2025 passed by this Court was duly served upon the Opposite Party on 19.09.2025. Thereafter also, the Opposite Party remained absent on 22.12.2025. Consequently, the matter was adjourned with a clear indication vide order dated 22.12.2025 that the Writ Petition would be taken up for hearing and disposal on the adjourned date. Today also, when the matter is called, the Opposite Party remains absent.
Accordingly, in view of the order dated 22.12.2025, the matter is taken up for hearing and disposal at the stage of admission.
Heard learned Counsel for the Petitioner.
Learned Counsel for the Petitioner, apart from reiterating the grounds urged in the writ petition, files a memo of citations in support of his submissions, so also to justify the prayer made in the wit petition. The same is taken on record.
It appears from the record that the Opposite Party-wife had instituted a proceeding under Section 13(ia) (ib) of the Hindu Marriage Act, 1955, shortly “HMA, 1955”, before the learned Judge, Family Court, Jajpur, which was registered as C.P. No.05 of 2024. In the said proceeding, the present Petitioner, who is the Opposite Party-husband therein, filed an application on 19.11.2024 seeking casual custody intermittently as well as permission to visit the minor daughter at her maternal place, where she is presently residing.
In response to the said petition, a written objection was filed by the Opposite Party-wife opposing to such prayer basically on the grounds that the Petitioner is a chronic drunkard. He used to take liquor and other intoxicants everyday and under the influence of the liquor, he used to abuse, assault and beat the Opposite Party-wife. That apart, there is an apprehension that the Petitioner may kidnap the child, as he allegedly tried for the same number of times.
Ultimately, the learned Court below rejected the application dated 19.11.2024 with the following observations:
“6.Admittedly, the respondent is the father of the minor daughter, but the allegation brought by the petitioner that he is intensely addicted to liquor and other intoxicants cannot be ruled out and most importantly, he did not appear in this Court to participate in the conciliation sittings for exploration of the real truth regarding their matrimonial differences. Conceding the factum of addiction to intoxicants, it is natural to furnish opinion that in case the respondent would be allowed to take casual custody and to render intermittent visitation of the minor daughter, she may be deeply influenced due to fear psychosis which may flow from her respondent-father and her prospective career may be adversely affected.
7.Importing from the pleadings of the petitioner, it is evident that the respondent is a chronic drunkard and he is intensely addicted liquor and other intoxicants and he had tendered excuses/apologizes for not commission of such abominable practices and the petitioner has apprehended fear in her mindset to further live with him. All these objectionable activities of the respondent-husband must have been imprinted in the mind of the minor child which may again explode after seeing her father. The judicial principle pressed into service is not appearing to be applicable to the present fact-situation. Therefore, considering such critical ensuing apprehensions against the welfare and upbringing the minor child who is now safely living with her mother, I am not inclined to allow neither casual custody nor intermittent visitation of the child to the respondent and thus the petition stands accordingly rejected.”
The Supreme Court in Yashita Sahu Vs. State of Rajasthan, reported in (2020) 3 SCC 67, held as follows:
“22.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 reunion 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 manner 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.
23.The concept of visitation rights is not fully developed in India. Most courts while granting custody to one spouse do not pass any orders granting visitation rights to the other spouse. As observed earlier, a child has a human right to have the love and affection of both the parents and courts must pass orders ensuring that the child is not totally deprived of the love, affection and company of one of her/his parents.
24.Normally, if the parents are living in the same town or area, the spouse who has not been granted custody is given visitation rights over weekends only.In case the spouses are living at a distance from each other, it may not be feasible or in the interest of the child to create impediments in the education of the child by frequent breaks and, in such cases the visitation rights must be given over long weekends, breaks and holidays. In cases like the present one, where the parents are in two different continents, effort should be made to give maximum visitation rights to the parent who is denied custody.”
(Emphasis supplied)
This Court in Sanjay Sharma Vrs. Dolly @ Sakhi Sharma and another, reported in 2025 SCC OnLine Ori. 3736, as well as in Ayeesurya Mishra Vrs. Lohit Kumar Dash; W.P.(C) No.22651 of 2024, following the case of Yashita Sahu (supra) held that father has a visitation, when the minor child is in custody of the mother.
In a recent judgment of this Court in Saurav Raiguru Vrs. Ananya Mishra, reported in 2026 SCC Online Ori. 6565, relying on Yashita Sahu (Supra), it was held as follows:
“13.Law is well settled that, in matters involving custody or visitation of a child, the welfare of the child is of the paramount consideration. A child of tender age is entitled to the love, care and companionship of both the parents. While custody may rest with one parent, the other parent must ordinarily be given sufficient access, unless exceptional circumstances justify otherwise.”
“15.In custody/guardianship matters, the Courts have to consider the welfare of the minor child, which is the paramount consideration and to ensure and safeguard family system in the country, which is fast eroding and to ensure that there is overall development of the minor child and there is proper environment and upbringing of the child and therefore, the best interests of the child are taken care.”
(Emphasis supplied)
Further, in Manoj Dhankar Vrs. Neeharika and others, reported in 2025 (II) CLR (SC) 1042, the Supreme Court, considered the request of the father for interaction with his child through video conferencing to be reasonable, observing that such an arrangement balances the child's existing living situation with the need to ensure that the father continues to remain a part of the child's life. Accordingly, the father was permitted to interact with his son through video conferencing.
In the present case, the learned Court below appears to have proceeded significantly on the allegations made by the Opposite Party-wife regarding the alleged addiction of the Petitioner-husband to liquor and other intoxicants and the apprehension expressed by her regarding the psychological impact of his interaction upon the minor child. However, there does not appear to be any material on record, apart from the allegations contained in the objection, to substantiate such apprehension to an extent warranting complete denial of visitation and interaction.
At the same time, having regard to the nature of the allegations leveled against the Petitioner-father, this Court is of the considered view that the welfare and safety of the minor child can appropriately be protected by regulating and supervising the visitation. Such an arrangement would also balance the welfare of the child with her right to maintain contact with her father.
In view of the reasons and the settled position of law, detailed above, this Court is of the view that the learned Court below was not justified in completely rejecting the prayer of the Petitioner-husband for visitation and interaction with the minor child solely on the basis of the allegations regarding his alleged addiction to liquor and other intoxicants, particularly in the absence of sufficient material on record substantiating the apprehension of any adverse psychological impact upon the child. Thus the impugned order dated 19.12.2024 passed by the learned Judge, Family Court, Jajpur in C.P. No.05 of 2024 deserves interference.
Accordingly, the impugned order dated 19.12.2024 passed in C.P. No.05 of 2024 is set aside.
The prayer of the Petitioner-father for visitation and interaction with the minor female child, namely, “Divyanshi”, is allowed subject to the following terms and conditions:
I. Since there is an allegation of addiction of the Petitioner-father to liquor and other intoxicants, it would be advisable to have a supervised visitation in the house of the Opposite Party-wife, who is at present residing at village Arada in the District of Jajpur.
II. Since the minor daughter is now staying with her mother in Village: Arada, P.O: Bhotaka P.S: Kuakhia, Dist: Jajpur, for smooth visitation and interaction of the Petitioner-father with the child “Divyanshi”, the Inspector-In-charge, Kuakhia Police Station, Kuakhia, shall depute a constable to the house of the Opposite Party-wife on the dates of visitation.
III. As presence of a police personnel in the house of the Opposite-Party wife may have psychological impact on the minor child, the police personnel shall remain present on civilian dress on each date of visitation, instead of his usual police uniform.
IV. Such visitation/interaction shall be twice in every calendar month.
V. Since the girl child would be around 8 years old and frequent visitation in normal working days may affect her studies, the date of visitation would be normally on the 2nd and 4th Sunday of every month at 11 A.M.
VI. The 1st date of visitation is fixed to 20.09.2026 at 11 A.M. The subsequent dates and time of visitation shall be decided by the parties mutually as per their convenience, on the days, as observed above.
VII. Duration of such visitation/interaction normally should be about two hours, i.e., from 11.00 A.M.to 1.00 P.M.
VIII. Apart from visitation, the Petitioner-father is permitted to meet the child namely, „Divyanshi‟ on her birthday each year and give her gifts, if he so intends.
IX. That apart, the Petitioner-husband is permitted to interact with “Divyanshi” through WhatsApp video calling or any other suitable mode of Video Conferencing platform on every 1st and 3rd Sunday, so also other holidays for about one hour, i.e., from 6.00 P.M. to 7.00 P.M.
X. For the purpose of WhatsApp video calling, if so required by the Opposite-Party-wife, the Petitioner shall provide a new android mobile phone, which can be used for the purpose of facilitating WhatsApp video calling/interacting with the minor child namely, “Divyanshi”.
XI. The Petitioner shall not create any unpleasant situation at the time of exercising his visitation right so also during his interaction with “Divyanshi”, which are not at all conducive to the interest of the child, failing which he shall be debarred from spending time so also interacting with the child namely, “Divyanshi” through Video Conferencing.
XII. Similarly, the Opposite Party-wife shall also cooperate with the Petitioner with regard to visitation and interaction right accorded by this Court, as detailed above, and not to create any unpleasant situation at the time of exercising such rights by the Petitioner at her home, so also during his interaction with the child “Divyanshi” through WhatsApp Video Call.
Accordingly, the Writ Petition stands allowed and disposed of in the above terms. There shall be no order as to costs.
Office is directed to communicate a copy of this judgment urgently through E-mail as well as through speed post to the Inspector-In-charge, Kuakhia Police Station, Kuakhia, District: Jajpur for his information and necessary action.
Urgent certified copy of this judgment be granted on proper application.