Child has right to both parents’ love despite matrimonial fight: Calcutta High Court

Observing that a child’s “emotional and sentimental” needs evolve with age, the Calcutta High Court recently held that visitation rights must be reviewed periodically to reflect changing circumstances. In a case concerning a father’s plea for physical visitation rights to his 16-year-old daughter, the court underlined that a child cannot be deprived of the affection and care of either parent just because of matrimonial disputes.

The court observed that the love and care of both parents are essential for a child’s proper upbringing. “The child has a right to get the affection and care of both the parents even if there are matrimonial disputes between the parties to the marriage,” Justice Sharma said.

Justice Dinesh Kumar Sharma was hearing a plea filed by a father challenging a trial court order that had recalled an earlier direction that allowed virtual interaction with his daughter.

“There is a huge difference between the thought process and emotional and sentimental quotient of the child, while at the stage of ten years and sixteen years. The visitation rights which are granted by the courts are dynamic in nature and have to be examined and reviewed from time to time, taking into account the changed circumstances, if any,” the July 7 order read.

Marriage, divorce, visitation disputes

The child’s parents married in April 2006 under the Special Marriage Act, 1954. They girl was born to them in 2010. However, matrimonial disputes arose between the couple, leading to a divorce in January 2016, during which it was mutually agreed that the mother would have the child’s custody and the father would get weekly visitation rights.

Justice Dinesh Kumar Sharma heard the matter on July 7.

Seeking more access to his daughter, the father moved the court in 2019 and on August 28, 2020, he was granted weekly video-conference access to the child every Saturday between 5 pm and 6 pm.

Later, the wife moved a plea in November 2022, seeking recall of the order on several grounds, including that the interaction “outraged the sentiments and emotions of the minor”. After discussing with the child, the trial court recalled the virtual visitation arrangement following which the father approached the Calcutta High Court seeking to restore the order, besides interim permission to interact with his daughter twice a week.

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Arguments

The husband’s counsel, Biswaroop Bhattacharyya, submitted that he was away from the child for many years, and may be granted physical visitation rights so that the bond between the father and the daughter may be revived and strengthened. He further argued that physical visitation rights may be granted considering the child’s welfare and the father’s emotional needs.

Representing the woman, Senior Advocate Jayanta Narayan Chatterjee opposed the plea.

Court stresses child’s needs

The Calcutta High Court said that while parental disputes may complicate visitation arrangements, the child’s welfare remains the key consideration. It observed that courts must consider the overall circumstances of the case while safeguarding the child’s mental and physical well-being.

The court noted that when the parents arrived at the custody arrangement in 2016, the child was about five or six years old, and when virtual visitation was granted in 2020, she was around 10. Now that the child is about 16 years old, the court held that the issue of visitation deserved fresh consideration due to her changed emotional and developmental needs.

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It held that the trial court should revisit the matter after considering the current situation of both parents and the child.

It also allowed the father to file a fresh application seeking visitation rights. Pending this, the court directed that the existing arrangement of weekly virtual access between the father and daughter, preferably every Sunday from 6 pm to 7 pm, should continue without interruption.

The high court also emphasised that the wife should ensure that there should not be any hindrance to such virtual access between the father and daughter.