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2022 DIGILAW 621 (ALL)

Master Prakhar @ Palash v. State of U. P.

2022-04-25

ANIL KUMAR OJHA

body2022
JUDGMENT : 1. Heard learned counsel for the petitioners, learned counsel for the respondent no. 5 & 6, learned A.G.A. for the State and perused the record. 2. In compliance of order dated 12.04.2022, the respondent no. 5 & 6 produced the corpus Prakhar Singhania @ Palash before this Court. 3. On interaction and some queries, the corpus replied that he does not want to live with his father. He said that his name is Prakhar Singhania and he is studying in D.A.V. Public School, Ghaziabad. He further stated that he does not want to meet his father. 4. Submission of learned counsel for the petitioner is that corpus is the son of petitioner no. 2. The corpus Master Prakhar Singhaniya is currently residing with his maternal grand-father and grand-mother i.e. respondent no. 5 & 6. Learned counsel for the petitioner further submitted that the petitioner no. 2 simply wants visitation rights to meet his son i.e. corpus. Further submitted that as petitioner no. 2 is the father of corpus, so he should be given visitation rights at least twice in a month and at the festivals of Holi and Diwali. 5. Learned counsel for respondent no. 5 & 6 submitted that the corpus does not want to meet his father i.e. petitioner no. 2, hence, visitation rights should not be given to petitioner no. 2. 6. In Yashita Sahu v. State of Rajasthan & Ors. in Criminal Appeal No. 127 of 2020 (Special Leave Petition (CRL) No. 7390 of 2019) the Hon'ble Apex Court has held as follows : "9. It is too late in the day to urge that a writ of habeas corpus is not maintainable if the child is in the custody of another parent. The law in this regard has developed a lot over a period of time but now it is a settled position that the court can invoke its extraordinary writ jurisdiction for the best interest of the child. This has been done in Elizabeth Dinshaw v. Arvand M. Dinshaw & Ors., Nithya Anand Raghavan v. State (NCT of Delhi) & Anr. and Lahari Sakhamuri v. Sobhan Kodali among others. In all these cases, the writ petitions were entertained. Therefore, we reject the contention of the appellant wife that the writ petition before the High Court of Rajasthan was not maintainable. 19. and Lahari Sakhamuri v. Sobhan Kodali among others. In all these cases, the writ petitions were entertained. Therefore, we reject the contention of the appellant wife that the writ petition before the High Court of Rajasthan was not maintainable. 19. 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. 21. 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." 7. 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." 7. Thus, law on the above point is 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. It is only in extreme circumstances that one parent should be denied contact with the child. 8. So far as the facts of the present case are concerned, the corpus is residing with his maternal grand-father and grand-mother, therefore, this Court is of the opinion that a father cannot be deprived of his visitation rights. 9. In view of the law laid down by Hon'ble Apex Court and considering the facts and circumstances of this case, petitioner no. 2 being father of the corpus is entitled for visitation rights subject to following conditions : (1) Petitioner no. 2 is granted visitation rights to meet his son i.e. corpus once in every month, on the first opening day of every month after study hours for two hours at the School of corpus. (2) Petitioner no. 2 is also granted visitation rights to meet his son i.e. corpus on the festival of Holi and Diwali, just before the closing day before festival for two hours at the School of corpus. (3) Petitioner no. 2 shall not create any disturbance in school campus while meeting the corpus and he shall not create any pressure upon the corpus in any manner. (4) It is made clear that SHO concerned and Principal of DAV Public School, Ghaziabad shall facilitate and ensure the meeting of petitioner no. 2 with corpus. 10. With the above directions, this Habeas Corpus Writ Petition is disposed of finally.