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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 dismissed an application last Friday filed by a woman challenging a sessions court order granting visitation rights to her estranged husband.

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 that a man has no right to independently prefer an application under section 21 of the Act for custody orders.

The petition also claimed that a man can seek custody of his child only under section 26 of the Hindu Marriage Act.

The woman’s husband opposed the plea, saying he was not seeking permanent custody of the child at this stage but was only seeking visitation rights.

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

The court noted that the Act aims to prevent 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.

It also said the applicant’s interpretation of section 21 of the Act cannot be accepted as there may also be a situation where a child is in custody of the mother.

“…in cases where the child is in custody of the mother, then the father can avail remedy under the said section of the DV Act,” the court observed.

It noted that child visitation guidelines are to ensure that the child gets to spend equal or substantial time with both parents.

“The paramount consideration shall be welfare of the child. The court’s endeavour 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.

It further noted that children face a traumatic phase when their parents are engaged in a legal battle and it is worse when the “war” is extended by laying claims on the children’s custody.

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

In July 2017, 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 December 2017, the husband filed an application before a magistrate court under section 21 of the Act seeking visitation rights to his son.

The magistrate court allowed the 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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