The Supreme Court said family courts should grant visitation rights in such a manner that a child is not deprived of the love and care of either parent.

A Bench led by Justice Deepak Gupta said the interest of the child should be kept foremost in custody battles between separated parents. “A child has the right to affection of both his parents,” Justice Gupta noted in a two-page order.

The order is based on a plea by a man for custody of his child, who is with the wife.

The court declined to interfere with the family court’s order granting the custody of the child to the mother.

The Bench, however, gave the man liberty to approach the family court for enhancement of his visitation rights.

“We direct the family court to ensure that visitation rights are fixed in such a manner that the child gets to know and love his father. A child has a right to the affection of both his parents and the family court shall ensure that visitation rights are granted in such a manner,” Justice Gupta wrote.

He said the family court should also make suitable arrangements during vacations, keeping the interest of the child foremost.

On July 22, the Supreme Court had, in a different case, agreed to examine provisions in family laws which allow exclusive custody of children to just one parent after, probably, an ugly marital separation.

The petition filed by Sulochana Rani has sought a reform in the family laws and raised several concerns regarding why children cannot enjoy the benefits of shared parenting. The custody and guardianship of a child with just one separated parent, while giving the other mere visitation rights over the child, is a violation of the fundamental right of a child to enjoy the love and care of both parents.

The right of a child to love and to be loved is already recognised as a fundamental right and is to be protected. When custody is entrusted to one parent, the well-being of the child and the right to an enhanced quality of life during crucial years of personal development will be severely affected.

The petition had listed a number of provisions in various family law statutes which discriminate on the custodial rights of separated parents solely on the basis of their gender.

It said the family laws of the present lack a child-centric approach, which is based on the idea of shared parenting.

“The legal provisions which currently exist as per various personal laws are in the nature of entrusting the custody of children exclusively to one of the parents in case of separation. The statutes create a strong presumption in favour of exclusive custody. This presumption severely affects the fundamental rights of the spouse who has been denied the custody rights and the fundamental rights of the child who will be deprived of care and love of both parents. This scheme of statutes requires reformation,” Ms. Rani had contended in her petition.


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