Amyra Dwivedi (Minor) Through her Mother, Smt. Pooja Sharma Dwivedi vs Abhinav Dwivedi and Another

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.2067 OF 2020 (Arising out of S.L.P.(C) No.15215 of 2019)

Amyra Dwivedi (Minor) Through Appellant(s) her Mother, Smt. Pooja Sharma Dwivedi

Versus

Abhinav Dwivedi and Another Respondent(s)

J U D G M E N T

Deepak Gupta, J

1 Leave granted.

2 This appeal arises out of an order dated 13 May 2019

passed by the High Court of Judicature at Allahabad, Lucknow

Bench, in Habeas Corpus No.24675 of 2018, whereby the

petition filed by the appellant (the mother) for custody of

her child was dismissed, but she was granted visitation

rights in the following terms:

Signature Not Verified Digitally signed by CHETAN KUMAR Date: 2020.03.17 16:37:46 IST Reason:

“(I) The petitioner (Smt. Pooja Sharma) is granted visiting rights to meet her daughter, who is CA 2067/2020 2

presently residing with the opposite party No.1. The meeting of the petitioner with her daughter (corpus) would be at the place as agreed by the parties and in case of their inability to agree on any place such meeting shall be held at the office of the Secretary, District Legal Services Auhtority, Lucknow during office hours i.e. 10:00 am to 4:00 pm for two hours on a day and time agreed into by the parties or as directed by the Secretary, District Legal Services Authority, Lucknow, on any day preferably Saturday, once in a month.

(II) During meeting hours, the petitioner would be free to give any kind of gifts to her daughter of her choice and liking and the same would not be objected to by the opposite party No.1. However, the petitioner will not take the corpus with her anywhere beyond the boundaries of the Office of Secretary, District Legal Services Authority, Lucknow. Such meeting will be held in a secured atmosphere and it shall be the duty of the Secretary, District Legal Services Authority, Lucknow to provide cordial atmosphere and security to the parties.”

3. We are not at all happy with the manner in which the

visitation rights have been granted in the present case. The

High Court has directed that the mother can meet the child

for two hours once a month, that too, in the Office of

Secretary, District Legal Services Authority, Lucknow or at a

place, mutually agreed to by the parties and in case of

disagreement, before the District Legal Services Authority,

Lucknow. However, it has been ordered that the meeting wwould

be held in a secured atmosphere and it will be the duty of

the Secretary to provide cordial atmosphere and security to

the parties.

4. In Yashita Sahu v. State of Rajasthan 2020 AIR 577,

this Court held that the welfare of the child is of paramount CA 2067/2020 3

consideration in matters relating to custody of children. In

this context, we may refer to paragraph 22 of the judgment,

which reads as follows:

“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 re-union 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 matter 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.”

5. When a court grants visitation rights, these rights

should be granted in such a way that the child and the parent

who is granted visitation right, can meet in an atmosphere

where they can be like parent and child and this atmosphere

can definitely not be found in the office of District Legal

Services Authority. That atmosphere may be found in the home

of the parent or in a park or a restaurant or any other place

where the child and the parent are comfortable. CA 2067/2020 4

6. As far as the present case is concerned, the

admitted facts are that the child lives with her grand

parents in Lucknow, U.P. and the father is working in

National Capital Region (NCR). The child attends school and

is in lower KG. We, therefore, issue the following direction

with regard to the visitation and contact rights:

(I) The mother shall be entitled to meet the child both on

the Saturdays and Sundays for a period of eight weeks

at the first instance. She will take the child from the

grand parents’ home at 10:00 am and drop her back at

5:00 pm in the evening. In case, the Saturday is a

school working day, then the mother will be entitled to

pick the child up from school and stay with her till

8:00 pm and then drop her to the grand parents’ home.

(II) After the period of eight weeks is over and the child

becomes familiar with her mother and gets to know her

better, the mother will be entitled to keep the child

on weekends from 10:00 am in the morning on Saturday

till 5:00 pm in the eventing on Sunday. In case,

Saturday is a school working day, the mother will pick

up the child immediately after school and drop her back

to the grand parents’ house at 5:00 pm in the evening

on Sunday.

CA 2067/2020 5

(III) On festivals, such as, Holi, Diwali, etc., the child

may spend time with the grand parents in the morning,

but in the evening, she will be permitted to go with

the mother for at least four hours on every festival.

(IV) As far as summer vacations are concerned, if the

vacations are for more than fifteen days, the mother

will be entitled to take the child for seven days, but

only after 30th April. In case the vacations are for

more than one month, then she will be entitled to keep

the child for fifteen days. During the vacations, the

mother can take child out for holidays to any place

wherever she feels comfortable.

(V) On the birthday of the child, we hope and expect that

both the parents should spend some time together with

the child leaving their differences apart, but if they

cannot do so, then the mother can have custody of the

child in the first half of the day for at least eight

hours and the grand parents in the second half.

(VI) We permit the mother to attend all the school

functions, such as, annual day, foundation day, sports

day or parents teacher meeting. We direct the school

concerned to ensure that on the production of the order

of this Court, the name of the appellant be entered

into the school records as mother of the child and she CA 2067/2020 6

be called for all the functions when other parents are

called. She shall also be apprised about the progress

of the child in the school.

(VII) As far as the contact rights are concerned, since the

mother and child live in same town, the mother can

either make video call or telephone call with the child

every day for ten minutes between 7:30 pm to 8:30 pm in

the evening.

7. We dispose of this appeal with the aforesaid

directions.

8. We make it clear that the appellant wife is at

liberty to move the appropriate court for custody of the

child under the Guardians and Wards Act 1890. We further

direct that in line of the order which we have passed today,

if the need arises, the court concerned can increase the

period of visitation rights of the mother, pending disposal

of the custody petition.

....................J. [Deepak Gupta]

....................J. [Aniruddha Bose] New Delhi March 06, 2020 CA 2067/2020 7

ITEM NO.26 COURT NO.15 SECTION XI

S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS

Petition(s) for Special Leave to Appeal (C) No.15215/2019

(Arising out of impugned final judgment and order dated 13-05-2019 in HC No. 24675/2018 passed by the High Court of Judicature at Allahabad, Lucknow Bench)

AMYRA DWIVEDI (MINOR) THROUGH HER MOTHER Petitioner(s) POOJA SHARMA DWIVEDI

VERSUS

ABHINAV DWIVEDI & ANR. Respondent(s)

Date : 06-03-2020 This petition was called on for hearing today.

CORAM :

HON'BLE MR. JUSTICE DEEPAK GUPTA HON'BLE MR. JUSTICE ANIRUDDHA BOSE

For Petitioner(s) Mr. Vishwajit Singh, Adv.

Mr. Pankaj Singh, Adv.

Ms. Ridhima Singh, Adv.

Ms. Vijaya Singh, Adv.

Mr. Vignesh Singh, Adv.

Ms. Veera Kaul Singh, AOR

For Respondent(s) Mr. Shail Kumar Dwivedi, AOR Mr. Siddharth Krishna Dwivedi, Adv.

Ms. Vibha Dwivedi, Adv.

Ms. Nidhi Dwivedi, Adv.

Mr. Andleeb Naqvi, Adv.

Ms. Garima Prashad, AOR

UPON hearing the counsel the Court made the following O R D E R

Leave granted.

CA 2067/2020 8

The appeal is disposed of in terms of the signed reportable judgment.

Pending application(s), if any, stand disposed of.

(Chetan Kumar) (Parveen Kumari Pasricha) A.R.-cum-P.S. Court Master

(Signed reportable judgment is placed on the file)