Aditya Mahajan vs Shachi Mahajan MAT.APP.(F.C.) 82/2016 & CM 23339/2016 Delhi HC on 1 September 2016

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In a case concerning visitation rights of a parent, the Delhi High Court has said mere hesitation on the part of the child to meet either parent should not be a ground to absolutely deny access to the child by that parent.

Earlier, the Family Court of Karkardooma had limited the visitation timings of the father, Aditya Mahajan, to meet his son to one hour (4-5 pm) every first Monday of the month, after it found that the child was hesitant to be around his father.

The Family Court had observed that the parents have unfortunately got involved in multifarious litigations and the appellant mother even has an order of protection under the Protection of Women from Domestic Violence Act, 2005.

Since the child stayed with his mother, a sense of fear is not unnatural due to an adverse impact on his young mind, the Family Court had concluded.

However, the High Court stated that even if the unjust attitude towards the mother is assumed to be true, the child’s father shouldn’t be barred from meeting him because it’s important for a child’s full development that he interacts with both parents, despite them being estranged.

Disapproving of the Family Court’s decision to allow the father to meet his child for only one hour on seeing the hesitance of the child, the High Court said: “If a child is hesitant to be with a parent, it is duty of the Presiding Judge of the Family Court to have the child counselled with the help of the counsellors attached to the Court. Every effort has to be made to counsel both parents to spare the child the agony of their separation. The parents have to be counselled to keep the child out of the litigation. Both spouses should be encouraged to, in turn encourage the child to meet the other spouse.”

The process of breaking ice and reaching a resolution is hard, but courts should nevertheless aim for conciliation or some compromise. If a child shows hesitance on meeting either parent, that should not be a ground to deny proper access to the spouse in question, it stated.

Focussing on the need for the child to have a functional relation with both parents, the High Court opined:

“Till a resolution takes place, as an interim measure, we direct that the appellant be granted access to the child on fortnightly basis. The meeting would be initially either in the counsellors’ room attached to the Family Court Complex or in the children room. If the counsellors find the child comfortable with the father, he would be permitted to take the child out for two hours. If the situation improves, the ultimate endeavour would be for the child to spend six to eight hours every week with his father.”

Disposing of the appeal and restoring the application filed by the respondent under Section 12 of the Guardians and Wards Act, the High Court directed the Family Court of Karkardooma to refer the parents to the counsellors attached to the court.

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