The Tripura High Court in its judgment dated October 12, 2023 strongly enforced the concept of Shared Parenting in a matrimonial proceeding. The High Court said that a parent cannot be a guest in their child’s life and that limited hours of visitation may not be sufficient for a child to have a comfortable time with the non-custodial parent.
The High Court was hearing a plea filed by the father (non-custodial parent) and paternal grandparents under Section 482 CrPC challenging an order granting interim custody of the girl to the mother.
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Case:
Parties got married in August 2015 and were blessed with a daughter in October 2017. The family was residing in Udaipur, Tripura.
The respondent-wife left her matrimonial home on 27-05-2022 at about 8.30pm without informing anybody and also left behind her minor daughter, who was about 4 and half years then. When the petitioners (husband & his parents) came to know that the respondent is missing, they searched for her everywhere and finally on the same day lodged a police complaint and missing report in all leading newspapers.
On 06.06.2022 local police traced the wife and informed the husband that she refused to return to her matrimonial home as well as declined to go home even with her own parents. She made a declaration before the O.C. R.K.Pur PS that she had left the house voluntarily and she does not want to go back with the petitioners and will never ask for the custody of the minor daughter.
Adultery & Bigamy
The police also informed the husband that his wife had eloped with a man and married him. The wife herself admitted to this and said she will take mutual consent divorce from her first husband.
However, in September 2022, the wife filed a case against her first husband under Section 498-A IPC claiming custody of their minor daughter.
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Judicial Magistrate of First Class (JMFC)
The learned JMFC passed an ex-parte order on 27-09-2022 for the custody of the child in favour of the respondent-mother. When the petitioners received the information of initiation of said proceeding by the respondent, even without receiving the notice of the court, they voluntarily appeared before the court on 29.09.2022 and submitted written objection detailing all the facts as stated above.
Trial Court
The learned Trial Court Judge heard the matter and recalled the interim order of custody giving liberty to the wife to seek right of visitation. The respondent did not resort to the right of visitation rather filed appeal against the said order.
Appellate Court
The learned Appellate court on 01.09.2023, reversed the Trial Court order without considering the facts and the contentions of the petitioners and also without considering that the wife has no source of income for the welfare of the minor child.
Being aggrieved by this decision of the court, petitioners appealed in the High Court.
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Tripura High Court
Justice T. Amarnath Goud heard the matter and at the outset observed that while deciding matters of custody of a child, the primary and paramount consideration is the welfare of the child, however, while deciding the welfare of the child, it is not the view of one spouse alone which has to be taken into consideration.
The High Court affirmed:
This Court strongly believes that a parent cannot be a guest in their child’s life. If visitation rights only are granted for limited hours, it may not be sufficient for the child to have a comfortable time with the father or mother, whoever may be the case.
The Court also opined that if the gap between child and non-custodial parent widens, the child is left confused and hence, such acts of any parent in separating a child from the other parent should be “nipped in the bud” otherwise. Justice Goud added,
The separated parent ends up becoming a “guest” in the life of the child.
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High Court’s Observation On Best Interest Of Child In Custody Matters
The High Court stated that a child of tender years, requires the love, affection, company; and protection of both parents and therefore just because the parents are at war with each other, it does not mean that the child should be denied the care, affection, love or protection of any one of the two parents.
The Court further added that 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.
High Court On Visitation Rights In Different Scenarios
The High Court also gave directions that if parents are living in the same town or area, the spouse who has not been granted custody is given visitation rights over weekends only. Justice Goud elaborated:
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 places far away from each other, effort should be made to give maximum visitation rights to the parent who is denied custody.
Unless there are special circumstances to take a different view, the parent who is denied custody of the child should have the right to talk to his/her child for 5-10 minutes every day. This will help in maintaining and improving the bond between the child and the parent who is denied custody.
If that bond is maintained, the child will have no difficulty in moving from one home to another during vacations or holidays. The purpose of this is, if one happy home with two parents cannot be provided to the child then let the child have the benefit of two happy homes with one parent each.
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Custody in Present Case
Going through facts on record in the present case, the Tripura High Court reversed the lower court’s order, thereby granting custody of the daughter to both parents. Following instructions were given while passing this order;
- Monday to Friday: With Father
- Saturday-Sunday: Since the mother is staying at Agartala in her parental home, the custody of the child will be given to her on Saturday after school and Sunday. The mother will pick up the child and drop at the residence of the petitioner without affecting the school timings
- When it comes to public holidays and vacations, both parents will share their time equally
- The child will spend her birthday from morning to evening (until 4pm) with one parent and after 4pm the child will celebrate her birthday with the other parent
- If both parents wish to celebrate the birthday of the child together at a time and at a place as per her wish, they are at liberty to do so
Concluding the matter, the High Court added that the education and medical expenses of the child will be borne by the father.
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Voice For Men India Take:
- India is witnessing fast crumbling marriages and unfortunately children of separated couples are being tossed up as pawns in custody battles
- One must commend the Tripura High Court for giving so much clarity in custody cases, not giving more weightage to the matrimonial fight between the couple, and upholding the welfare of the child as supreme
- Warring couples on the other hand must understand how their children get psychologically affected due to their parents’ never ending court battles, and thus should mutually decide to work around a strategy of bringing up the child separately – a) as estranged spouses; b) together as biological parents
DO WATCH:
Haara Nahi Campaign | Parental Alienation Awareness Day | Voice For Men India | Shared Parenting
ANOTHER TRIPURA HIGH COURT ORDER (JAN 2022)
READ ORDER | Parents Cannot Be Guest In The Life Of Children; Tripura HC Orders Shared Parenting
LEAVE YOUR COMMENTS BELOW:
READ JUDGMENT | "Non-Custodial Parent Can't Be Guest In Child's Life": Tripura High Court Enforces #SharedParenting In Child Custody Case
— Voice For Men India (@voiceformenind) October 25, 2023
▪️Adultery, Bigamy, #498A Case by Wife
▪️Brilliant clarity from HC on welfare of child#ParentalAlienation https://t.co/zrhqqF4Tmq
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