The Orissa High Court recently overturned a Family Court order that had denied a biological father visitation rights to meet his son while the custody case remains pending.
Justice Sanjay Kumar Mishra, presiding over the Single Bench, stressed the importance of parental visitation rights and emphasized that such rights must be decided based on the child’s best interests. The Court observed – “Since visitation right is an important right of either of the parents to see the children born out of their wedlock and while deciding the welfare of the child, it is not the view of one spouse alone, which has to be taken into consideration, this Court is of the view that the Court is required to decide the issue of visitation on the basis of what is in the best interest of the child.”
The petitioner-husband and the respondent-wife were married in 2011 and had two children during their marriage. After several years together, differences arose between them, leading to their separation due to temperamental incompatibility. The wife subsequently obtained an ex parte divorce decree against the husband and later remarried an older man in his fifties.
By mutual understanding, the couple agreed that their daughter would remain in the wife’s custody, while their son would stay with the husband. Both parties also granted each other visitation rights to meet their respective children. However, in early 2024, the wife allegedly took the son from school under the pretext of his illness and thereafter refused to return him to the father.
Consequently, the petitioner filed an application under Section 6 of the Hindu Minority and Guardianship Act, seeking custody of his son. Alongside this, he moved an interim application requesting visitation and communication rights during the pendency of the custody proceedings. The Family Court, however, rejected the application, citing the lack of a suitable neutral venue and concerns over possible “untoward incidents.” Challenging this order, the petitioner-husband approached the High Court through the present writ petition.
After hearing the parties in detail, the Court observed that by its interim order dated 16.05.2025, the petitioner had been allowed to make daily calls or WhatsApp calls to his son. However, the petitioner submitted an affidavit stating that he was able to communicate with his son for only ten days, after which the arrangement was discontinued due to the continuous interference of the respondent-wife.
The Court subsequently directed both parties to appear on 12.08.2025 with their minor son for an in-chamber hearing and interaction. Justice Mishra observed that during the meeting, the child appeared frightened of his father, the petitioner, addressing him as “uncle.” Surprisingly, the child also referred to the wife’s second husband as his father. The Court concluded that these responses were likely the result of coaching by the wife and accordingly noted – “On a prima facie consideration, admitted facts on record, including the Counsellor’s Report, so also the admitted fact that the Petitioner has kept himself away from remarriage so also custody of both the children is at present with their mother, who is married to an elderly person, who is already having three children, this Court is of the view that the refusal of visitation right to the natural father by the learned Judge, Family Court, Cuttack vide the impugned order appears to be unjust and contrary to the settled position of law.”
Further, considering the Supreme Court’s decision in Yashita Sahu v. State of Rajasthan (2020) and the High Court’s ruling in Manjusha Singhania v. Nimish Singhania, 2025 LiveLaw (Ori) 74, the Bench reiterated that children are not inanimate objects to be transferred between parents at will. The Court emphasized that visitation rights are a significant parental right and must be determined solely with the child’s welfare as the guiding principle.
Consequently, the impugned order was held to be flawed and was set aside. The case was remitted to the Family Court for fresh consideration, in consultation with the parties and their counsel, to determine the place, frequency, and timing of visits. The lower Court was also directed to impose suitable conditions to allow the petitioner to maintain telephonic or WhatsApp communication with his son during the pendency of the custody proceedings.