Chhattisgarh High Court: In a child custody battle, the Division Bench of Goutam Bhaduri and Rajani Dubey, JJ., reiterated the position of law in the Supreme Court’s decision of Yashita Sahu v. State of Rajasthan, (2020) 3 SCC 67, wherein it was held that the court cannot provide one happy home with two parents to the child then let the child have the benefit of two happy homes with one parent each, further this Court granted visitation and contact right to the father.
A father of the child had filed an instant appeal against the decision of the Family Court whereby the child’s custody had been ordered to be kept with the mother/respondent.
Factual Matrix
It was stated that at the time of the birth, the child was suffering from a certain ailment, and he had a lump on spinal cord, as such he was not able to discharge his functions including urine, etc., therefore, the child was being treated continuously.
Due to the transferrable jobs, the husband and wife were at different locations, after which the husband started alleging the wife that she was not treating the child properly. Husband filed an application for custody of the child which was decided by the impugned order whereby the father was denied the custody and hence the present appeal was filed.
Analysis, Law and Decision
High Court expressed that, in cases of custody of child, the society values are riddled with contradiction. Though the Courts have never missed the finer points of the paramount issue of welfare of the child.
As per the existing factors, the father’s job involved field work, whereas the mother’s job was of teaching and in order to take care of the child she could take him along to the school, hence the father though was a well-wisher and wanted to take care of the child, but the degree of care as was being extended by the mother were higher to hold the sway to have the custody of the child, especially considering the nature of ailment with which the child was suffering from birth.
“…when the father is working at field moving from one place to other, how it is expected that the father would be able to give the company to extend the physical support to the child?”
Hence, Family court’s decision of giving the custody of child to the mother was the correct decision.
The court observed that the “contact rights” is also important for the development of the child especially in cases where both parents live in different places the concept of contact rights in the modern age would be contact by telephone, e-mail or in fact we feel the best system of contact, if available between the parties should be video calling.
Order of the Court:
- The appellant/ father would be able to engage with the child on a suitable video conferencing platform for one hour every Saturday and Sunday and 5- 10 minutes on other days.
- Both the appellant/ husband and the respondent/ mother in order to facilitate the video conferencing in between shall procure smart phones which would facilitate the inter-se video calling.
- During long holidays/ vacation covering more than 2 weeks the child will be allowed to be in company of the father for a period of 7 days and the mother can also accompany them.
- The period shall be fixed by the father after due intimation to the mother and she will permit the child to go with the father for the aforesaid period and the mother may also accompany them.
- Every month preferably on 2nd Saturday and Sunday the mother shall allow the child to visit his father or father may take the child in his company and the mother may also accompany and leave him back in the evening of such day.
- During festivals like Dusshera, Diwali, Holi, the father may join the company of the child at the place of the mother and spend the festival days with the child along with the mother.
In view of the above, appeal was disposed of.[Lalit Kumar Jatwar v. Sushma Jatwar, 2022 SCC OnLine Chh 332, decided on 3-2-2022]
Advocates before the Court:
For Appellant: Shri Manoj Paranjpe, Advocate
For Respondents: Shri A.D. Kuldeep, Advocate