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India
07 Nov 2018

Father can seek child visitation rights under DV Act: Bombay-HC

Bombay HC on a father's child visitation rights

A father can seek visitation rights to his child under the Domestic Violence Act if the child is in the mother's custody, the Bombay High Court has ruled.

Justice Prakash Naik had dismissed an application last Friday that was filed by a woman who had challenged a sessions court order granting child visitation rights to her estranged husband.

Here's more.

In context

Bombay HC on a father's child visitation rights
Woman claimed husband has no right to seek custody orders

Woman's plea

Woman claimed husband has no right to seek custody orders

The woman in her plea claimed that the sessions court had erred in passing such an order as under Section 21 of the Protection of Women from Domestic Violence Act, only an aggrieved woman can seek custody or visitation of her child.

The woman claimed a man has no right to independently prefer an application under Section 21 of the Act for custody orders.

Man can seek custody only under Hindu Marriage Act: Petition

The woman's petition claimed a man can seek custody of his child only under Section 26 of the Hindu Marriage Act. Her husband opposed the plea, saying he was not seeking permanent custody of the child at this stage but was only seeking visitation rights.

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The court

DVA aims to prevent occurrence of domestic violence: HC

Justice Prakash Naik said if the interpretation advanced by the wife is accepted, then it would defeat the purpose of the Protection of Women from Domestic Violence Act.

The court noted the Act aims to prevent the occurrence of domestic violence in society and keeping that in view, protection orders for the safety of aggrieved persons, which include children, will have to be passed.

Visitation guidelines ensure children spend equal time with parents: Court

The child

Visitation guidelines ensure children spend equal time with parents: Court

The HC said if the child is the mother's custody, the father can avail remedy under Section 21 of the DVA.

Visitation guidelines are to ensure children get to spend equal or substantial time with both parents.

It noted children face trauma when parents are engaged in a legal battle and it's worse when the "war" is extended by laying claims on their custody.

Court says paramount consideration shall be welfare of child

"The paramount consideration shall be welfare of the child. The court's endeavor should be to ensure that the child gets love and affection of both parents. A smooth and proper development of the child requires affection from both parents," the HC said.

Details

Wife complained against husband, started living separately with son

The couple, in this case, got married in 2008 and had a son in 2012.

In Jul'17, the wife lodged a complaint against her husband under the Protection to Women from Domestic Violence Act and started living separately with her child.

In Dec'17, the husband filed an application before a magistrate court under Section 21 of the Act seeking visitation rights to his son.

Wife challenged magistrate court's order in sessions court

The magistrate court allowed the husband's application and ordered for the son to be with his father during weekends, twice a month. The wife challenged the order in the sessions court which upheld the magistrate court's order. Following this, she moved the high court.

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