“Father’s Right to Meet His Child Cannot Be Denied Merely for Non-Payment of Maintenance” — Visitation Is About the Child’s Welfare, Not Parental Retribution: Orissa High Court.

“Child Is Not a Trophy in Parental Conflict — Visitation Rights Must Serve the Child’s Best Interest, Not Be Denied Over Spousal Disputes” — In a notable decision Orissa High Court  dismissed a writ petition challenging a lower court’s interim order granting fortnightly visitation rights to a father, despite ongoing matrimonial and custody litigation.

Justice G. Satapathy, sitting in the Constitutional writ jurisdiction under Articles 226 and 227, upheld the trial court’s order dated 23.11.2019 and firmly reiterated that the child’s welfare remains the paramount consideration, overriding all spousal grievances, including allegations of desertion or non-payment of maintenance.

“Excepting in extreme circumstances, one parent should not be denied the right to contact or visit his or her child, and cogent reasons must be assigned for refusing visitation,” the Court observed, affirming that custody litigation cannot become a tool to deny a child their right to both parents’ affection.

Visitation Order Challenged on Grounds of Desertion and Maintenance Default

The petitioner, Manjusha Singhania, approached the High Court seeking to quash the trial court’s order granting visitation to the father–respondent, Nimish Singhania, in I.A. No. 123 of 2017 arising from a pending divorce proceeding (MAT No. 19 of 2016).

The petitioner argued that the husband had deserted the child when he was only a month old, failed to pay interim maintenance or litigation expenses, and had made no effort to care for the child over several years. Further, she submitted that since the father had also filed a separate custody petition under Section 26 of the Hindu Marriage Act, the trial court could not have independently granted visitation in an interlocutory application.

Visitation Independent of Custody, Maintenance or Marital Conflict

Rejecting these contentions, the Court clarified that visitation rights are not subordinate to custody applications, nor are they extinguished due to pending litigation or default in spousal maintenance obligations.

“The child is entitled to love, affection, protection, and guidance of both parents… This is not just a requirement, but a basic human right of the child,” the Court held, emphasizing that the best interest of the child trumps procedural objections. [Paras 5–6]

Justice Satapathy further noted:

“The child should not be denied proper care and affection merely because his/her parents are at war with each other. The child is not an inanimate object to be tossed from one parent to another.” [Para 6]

On the petitioner’s argument that the father defaulted on maintenance, the Court found the reasoning untenable in law:

“Visitation right of the child is considered on a different pedestal of welfare… Such contention (of maintenance default) is insignificant.” [Para 7]

Visitation Serves Child’s Emotional and Psychological Needs

In strong terms, the Court warned against using children as instruments of vengeance or leverage in acrimonious matrimonial disputes:

“The child is always the victim in the custody battles and in the fight of egos… Such childhood is spoiled due to the alter egos of the spouses.” [Para 5]

Noting the absence of any tangible material showing that the father’s access would harm the child, and given that he had not seen his son for years, the Court found no compelling reason to interfere with the lower court’s order.

“There being no extreme circumstance to refuse the father his legitimate right to visit his son, this Court finds no reason to interfere under its extraordinary writ jurisdiction.” [Para 8]Visitation Is the Child’s Right, Not Parental Privilege

Dismissing the writ petition, the Court reiterated that child custody and visitation decisions must not be driven by inter-spousal animosity, but by the overriding principle of what serves the child’s welfare. Emotional access to both parents, where safe and possible, is a fundamental developmental need of the child — one that cannot be denied except for clear and grave harm.

“Visitation is not a consequence of maintenance compliance, but a facet of the child’s right to familial love.”

Date of Decision: 14 May 2025