High Court · 2022

Tersely put, the case of the petitioner is that the marriage of Smt. Seema Shukla (mother of the corpus) was solemnized with respondent no. 4 Atul Shukla according to Hindu Rites on 19.05.2003 and out of their wedlock one issue namely Dibyansh Shukla i.e. corpus was born on 15.10.2013. Some dispute arose between the couple which later on resulted in matrimonial discord. Some criminal cases were filed against the husband. Smt. Seema Shukla is the real mother of the corpus. At present, the corpus is residing with his father Atul Shukla i.e. respondent no. 4. Respondent no. 4 is not permitting Smt. Seema Shukla to meet with corpus. Perusal of order sheet reveals that on 19.12.2019, Coordinate Bench of this Court provided visitation rights to the mother of the corpus. The relevant portion of the order is as follows: "The child welfare is of paramount and for this purpose the Court directs that the corpus remain with respondent no.4 and the mother namely Smt. Seema Shukla is permitted to visit and meet the corpus every Saturday and Sunday at the residence of respondent No.4 namely Atul Shukla (father of the corpus) and he undertakes that he would not create any impediment or disturbance in the meeting of mother and son. Certainly, mother is not permitted to carry him out from the premises." With regard to custody of the corpus, Smt. Seema Shukla may approach the competent court under Guardian and Wards Act. At this stage, learned counsel for the petitioner submitted that Smt. Seema Shukla being mother of the corpus is entitled for visitation rights once in a month and on the festival of Holi and Diwali. 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. 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." In view of the law laid down by Hon'ble Apex Court and considering the above facts and circumstances of the case, Smt. Seema Shukla being mother of the corpus is entitled for visitation rights subject to following conditions: (1) Smt. Seema Shukla is granted visitation rights to meet her son i.e. corpus Dibyansh Shukla once in every month, on the first Sunday for two hours at the residence of respondent no. 2. (2) Smt. Seema Shukla is also granted visitation rights to meet her son i.e. corpus Dibyansh Shukla on the festival of Holi and Diwali, just the preceding day of festival for two hours at the residence of respondent no. 2. (3) It is further made clear that SHO concerned shall facilitate and ensure the meeting of Smt. Seema Shukla with corpus. (4) It is further directed that respondent no. 4 would not create any impediment or disturbance in meeting of Smt. Seema Shukla and corpus. With the above directions, this Habeas Corpus Writ Petition is disposed of finally. Order Date :- 12.4.2022 VPS SHARMA Reason: Location: High Court of Judicature at Allahabad