-
by sayum
26 August 2026 1:49 PM
"Welfare of the child is paramount; visitation cannot be denied on surmises or past matrimonial discord" — In a pivotal judgment Orissa High Court set aside an order of the Family Court, Cuttack, which had denied a father access to his infant son, citing criminal proceedings and apprehensions of harm.
The High Court decisively ruled that “visitation rights are crucial for a child’s emotional development and cannot be denied merely on speculative grounds”, allowing both the natural father and the grandparents supervised and virtual visitation. Justice S.K. Mishra, authoring the judgment, held that denying contact to a non-custodial parent in the absence of concrete threat or abuse “is contrary to settled legal principles”, and emphasized the child's right to emotional connection with both parents.
The case marks a significant moment in the evolution of child contact rights jurisprudence in India, where the Court recognized that even amidst criminal allegations and marital breakdown, the best interest of the child must prevail.
“Even Amidst Marital Discord, a Child Cannot Be Denied the Love of Both Parents”: Court Calls Family Court’s Rejection “Perversely Speculative”
The case arose after the Family Court at Cuttack, in its order dated 20.03.2025, rejected the father's application under Section 151 CPC, which sought structured visitation and virtual contact with his minor son, Shlok Raiguru, born in December 2023.
The Family Court had denied the request, observing that “there is possibility of harm to the wife and her child, if the petitioner is allowed to frequently visit”, despite acknowledging that “the child is not only of the petitioner or the opposite party”.
Challenging the order through a writ petition under Articles 226 and 227 of the Constitution, the petitioner-father contended that the denial of contact was arbitrary, unsupported by material, and violated the child’s right to know his father and paternal grandparents.
The High Court agreed, holding that such denial, based on “unsubstantiated fears”, was “perverse”. The Court stated unequivocally,
“All the alleged incidents... were prior to 18.01.2024... there is no material on record to apprehend ongoing threat to the wife or child after that.”
Justice Mishra further observed that the petitioner-father had consistently taken recourse to legal remedies, and had never attempted to approach the child through illegal means.
“A natural father... fighting out a legal battle to see and meet his son... can not cause any harm to his own son so also wife, as has been incorrectly apprehended by the learned Court below.”
“A Child Has a Human Right to the Love and Affection of Both Parents”: High Court Applies Yashita Sahu Doctrine on Visitation Rights
Referring extensively to the Supreme Court’s landmark decision in Yashita Sahu v. State of Rajasthan, (2020) 3 SCC 67, the Court reiterated that contact rights are not contingent upon the amicability of marital relations, but are an independent legal and emotional right of the child.
Quoting Para 22 of Yashita Sahu, the High Court stressed:
“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.”
The judgment further drew on its own precedent in Sanjay Sharma v. Dolly @ Sakhi Sharma, 2025 SCC OnLine Ori 3736, where a similar denial of visitation had been overturned. Justice Mishra emphasized that courts must “clearly define the nature, manner and specifics of visitation rights”, and not simply reject such petitions based on one-sided fears or unverified accusations.
The Court observed:
“In custody matters, the views of only one spouse cannot dictate outcomes. The Court must evaluate independently what serves the best interest of the child.”
Court Recognizes Indepen“Grandparents Are Not Strangers in a Child’s Life”: dent Right of Grandparental Access
In a progressive move, the High Court also recognized visitation rights of the grandparents, affirming that the child’s emotional and psychological development is enriched by a relationship with the extended family.
The Court examined definitions from Black’s Law Dictionary, affirming that legal recognition of ‘grandparent visitation’ is both jurisprudentially sound and socially necessary.
The Court held:
“In the Indian society, the grandparents form an integral part for upbringing of children... their contribution cannot be ignored or shelved.”
Further, it stressed:
“Grandparents... have hopes on the grandson to come and inherit them one day, and are also required to be given visitation rights to the child.”
The denial of access to the paternal grandparents, without any proven misconduct or abuse, was held to be legally unsustainable.
High Court Frames Detailed and Structured Visitation Schedule, Blending Physical and Virtual Contact
Recognizing the tender age of the child (1 year and 10 months), the Court directed a supervised visitation regime to be conducted at the High Court Mediation Centre, Cuttack, with a female mediator and lady peon present at all times.
“The petitioner’s parents will have the visitation right, who can meet and interact with their only grandson... along with the petitioner on the dates fixed for visitation.”
The first visit was fixed for 15 November 2025 at 11 A.M., with subsequent visits on the 1st and 3rd Saturdays of every month, lasting two hours.
In addition to physical access, the Court also granted video calling rights via WhatsApp or similar platforms on the 2nd and 4th Saturdays and Sundays, from 6:00 to 7:00 P.M., thereby incorporating modern communication into custody jurisprudence.
To facilitate these calls, the father was directed to provide a new Android phone with SIM, exclusively for this purpose, to the mother on the first day of visitation.
“The petitioner-husband shall pay ₹2,000 in cash to the opposite party-wife on each date of visitation, to meet conveyance and other expenses to bring the child...”
Importantly, the Court warned both parties that any unpleasant conduct during visitations or video calls could result in revocation of these rights.
“The petitioner and his parents shall not create any unpleasant situation... failing which they shall be debarred from spending time so also interacting with the child.”
The visitation and contact arrangement will continue until the child turns five, after which the petitioner may apply for stepped-up visitation, in accordance with law.
“Family Courts Must Not Be Influenced by Emotion, But Guided by Law”: High Court Reiterates that Welfare of the Child is the Only True Test
In closing, the Court emphasized that speculative apprehensions or past discord cannot override the child’s fundamental right to emotional stability.
Justice Mishra concluded:
“In view of the materials on record... in the absence of any such exceptional circumstances warranting denial of visitation right, the learned Court below was not justified in rejecting the application... without any material to substantiate such finding.”
The Court allowed the writ petition, set aside the Family Court's order, and directed that a copy of the operative portion be communicated to the High Court Mediation Centre for implementation.
Date of Decision: 28 October 2025
