Source: High Court of Delhi 

Why in News? 

A bench of Justices Amit Bansal and Rajiv Shakdher held that in custody matters, a parent without the custody of their child is entitled to visitation rights so as to maintain the bond with their child.    

• The High Court of Delhi held this in the case of Amit Sharma v. Sugandha Sharma. 

What is the Background of Amit Sharma v. Sugandha Sharma Case? 

• In the present case the Appellant (Husband) and the Respondent (Wife) were married, and they had a son. Later they divorced. 
• The Family Court directed that the appellant would be allowed to meet the child on the first and third Saturdays of every mosnth in the Children’s Room, Dwarka Courts from 3.00 pm to 4.00 pm.   
• This was objected to by the respondent but the same was dismissed and the Court directed the meetings in the Children’s room in the presence of a counsellor. 
•  The appellant expressed his grievance that the aforesaid meetings could not take place due to the absence of a counsellor on various dates 
• This grievance was addressed by this Court by directing the concerned Family Judge to ensure that a counsellor is present in all such interactions between the child and the appellant. 
• In the report submitted by the Family Court Counsellor it was observed that the child was not ready to meet the father and was apprehensive. 
• An interim report was also submitted by an independent NGO which said that  the child in his interaction stated that he did not like to meet his father or visit Court on a regular basis as it makes him feel uncomfortable. 
• The issue before the Court was whether interim custody of the child should be granted to the appellant. 

What were the Court’s Observations? 

• The Court held that it is a settled position of law that in matters of custody the Court has to look into the best interests of the child. 
  • The best interest of the child has to be determined taking into account all relevant circumstances. 
• It cannot also be disputed that a minor child requires the love and affection of both his parents. 
• Therefore, even if the custody of the child is with one parent, the other parent must have visitation rights so as to ensure that the child maintains contact with the other parent. 
• The Court observed that joint parenting is the norm and if the Court moves away from it, it must articulate reasons for the same. 
• The Court held that there is a clear finding that the child was uncomfortable in the presence of the appellant. Considering the tender age of the child the Court held that the interim custody of the child should not be granted to the appellant. 

What is the law Regarding Interim Custody of a Child?  

Section 12 of The Guardians and Wards Act, 1890 

• This section deals with the power to make interlocutory orders for production of minor and interim protection of person and property. 
• Sub-section(1) of this Section provides the Court may direct that the person, if any, having the custody of the minor, shall produce him or cause him to be produced at such place and time and before such person as it appoints, and may make such order for the temporary custody and protection of the person or property of the minor as it thinks proper.  
• Sub-section (2) of this Section provides that if the minor is a female who ought not to be compelled to appear in public, the direction under sub-section (1) for her production shall require her to be produced in accordance with the customs and manners of the country. 
• Sub-section (3) provides that nothing in this section shall authorize- 
  • The Court to place a female minor in the temporary custody of a person claiming to be her guardian on the ground of his being her husband, unless she is already in his custody with the consent of her parents, if any, or 
  • Any person to whom the temporary custody and protection of the property of a minor is entrusted to dispossess otherwise than by due course of law any person in possession of any of the property. 

What is the Principle of Welfare of Child? 

• Section 13 of Hindu Minorities and Guardianship Act, 1956 (HMGA)  
  • This Section provides that the in the appointment or declaration of any person as guardian of a Hindu minor by a court, the welfare of the minor shall be the paramount consideration. 
• Section 17 of Guardian and Wards Act, 1890  
  • This Section provides matters to be considered while appointing a guardian. 
  • Section 17 (1) provides that in appointing or declaring the guardian of a minor, the Court shall, subject to the provisions of this section, be guided by what, consistently with the law to which the minor is subject, appears in the circumstances to be for the welfare of the minor. 
  • Section 17 (2) provides that In considering what will be for the welfare of the minor, the Court shall have regard to the age, sex and religion of the minor, the character and capacity of the proposed guardian and his nearness of kin to the minor, the wishes, if any, of a deceased parent, and any existing or previous relations of the proposed guardian with the minor or his property. 
  • Section 17 (3) provides that if the minor is old enough to form an intelligent preference, the Court may consider that preference. 
  • Section 17 (5) provides that the Court shall not appoint or declare any person to be a guardian against his will.   

What are the Case Laws Relating to Custody of Child? 

• Shazia Aman Khan and Another v. The State of Orissa (2024): 
  • Stability and security of the child is an essential ingredient for full development of a child’s talent and personality. 
  • Another principle of law which is settled with reference to custody of the child is the wish of the child, if she is capable of. 
  • The Court held that the welfare of the child has to be seen and not the rights of the parties. 
• Ashish Ranjan v. Anupam Tandon (2010): 
  • It is a well settled principle that while determining the question of custody the welfare of the child should be given paramount importance and not the rights of the parents under the statute.  
  • While considering the welfare of the child, the "moral and ethical welfare of the child must also weigh with the court as well as his physical well- being" 
  • The child cannot be treated as a property or a commodity and, therefore, such issues have to be handled by the court with care and caution with love, affection and sentiments applying human touch to the problem.  
• Col. Ramneesh Pal Singh v. Sugandhi Aggarwal (2024): 
  • The Court held that the matter of custody should be decided by taking into consideration the following factors: 
    • The socioeconomic and educational opportunities which may be made available to the Minor Children; 
    • Healthcare and overall well being of the children 
    • The ability to provide physical surroundings conducive to growing adolescents but also take into consideration the preference of the Minor Children.