Visitation Rights in India: Balancing Parental Interests and Child's Welfare

Posted on 26 July, 2023 by EVELYN ELSA PHILIP

Visitation Rights in India: Balancing Parental Interests and Child's Welfare

Introduction

The legal rights that allow a non-custodial parent or guardian visit their child after a divorce or legal separation are known as visitation rights in India. These rights are essential because they make sure that the child continues to have a close relationship with both parents, fostering their emotional and psychological well. The purpose of visitation rights is to achieve a careful balance between the wellbeing of the child and the interests of the parents. The idea of visitation rights in India, their significance, and the legal structure governing such rights are all explored in this blog. While interning at Singh's Law firm, I had a pretty enlightening conversation on the identical issue addressed in a case dealing with visitation rights with Adv. VK. Singh and Adv. Amogh Mund while dealing with the research.

Importance of Visitation Rights:

• Emotional Well-being: Children require the love and support of both parents for their emotional well-being. By preserving a steady emotional bond, visitation privileges lessen the psychological effects of parental separation on the child.
• Holistic development: By regularly interacting with both parents, a child can gain from both of their individual parenting philosophies, life experiences, and viewpoints, which benefits the child's entire growth.
• Sense of identification: It's crucial for children to keep a sense of identification and belonging to both sides of their family, which is necessary for a comprehensive understanding of their cultural history. Visitation rights can help with this.
• Stability and Routine: Consistent visitation arrangements give children a feeling of predictability and consistency, which helps to lessen the possible disruptions brought on by divorce or separation.

Legal Provisions for Visitation Rights in India:

India does not have a specific law solely addressing visitation rights. Instead, such rights are commonly granted under personal laws and various Acts, including:

• The Hindu Minority and Guardianship Act, 1956: Applies to Hindus, Buddhists, Sikhs, and Jains, and outlines provisions regarding the custody and visitation rights of minor children.
• The Guardians and Wards Act, 1890: Applicable to people of all religions and establishes the process for appointing guardians for minors, including granting visitation rights.
• The Special Marriage Act, 1954: Pertains to inter-faith marriages and contains provisions related to custody and visitation rights of children born out of such marriages.
• The Protection of Women from Domestic Violence Act, 2005: Ensures protection and maintenance for women and children, including visitation rights for the child.

Courts' Role in Determining Visitation Rights:

The court is crucial in deciding the non-custodial parent's visitation rights in divorce or separation cases. The child's best interests are the main consideration for the court when making decisions. Common considerations by courts include the following:

• The relationship between the child and each parent's emotional connection.
• The capacity of the parents to create a secure and nurturing atmosphere.
• Cooperation and encouragement of the child's relationship with the other parent by the parents.
• Preferences of a child, depending on their age and level of development.

Can visitation rights be denied?

• REKHA VYAS VERSUS AVIKAR VYAS LNINDU 2014 RAJ 17614- In the following case it was held that the visitation rights cannot be denied to the parenteven after an agreement that the child will be brought up by the other parent, unless the person, who has the custody of the child, gives sufficient reasons to successfully object to such rights.
•  MRS PAYAL SUDEEP LAAD @ PAYAL SHARMA VERSUS SUDEEP GOVIND LAAD AND OTHERSLNIND 2018 BOM 676-The Court further observed that the said guidelines further provides that the child has a right to spend time on regular basis with both parents and other people significant to their care, well fare and development.visitation rights of either of the parties to mean father or the mother to have access to their child cannot be denied.

Conclusion:

In India, visitation rights are crucial for maintaining the relationship between a child and both parents even in the event of a divorce or separation. These rights are essential for a child's emotional and psychological health as well as their overall development and sense of self. Even while India's legal system grants parents the right to visit their children, courts must nonetheless put the interests of the child first when making decisions. Both parents must understand how important it is to keep their relationship with their child positive and affirming in order to create a safe space for their development and happiness.