The Orissa High Court recently set aside a Family Court order that had denied a biological father the right to visit his son during the ongoing custody proceedings.
Presiding over the Single Bench, Justice Sanjay Kumar Mishra underscored the significance of parental visitation rights, noting that decisions regarding such rights should be guided by 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 respondent-wife were married in 2011 and had two children during their marriage. Over time, differences emerged between them, culminating in their separation on grounds of temperamental incompatibility. The wife later secured an ex parte divorce decree against the husband and subsequently remarried a man in his fifties.
By mutual agreement, their daughter was to remain in the wife’s custody, while their son would stay with the husband, with both parents retaining visitation rights to see their respective children. However, in early 2024, the wife allegedly took the son from school, citing illness, and subsequently refused to return him to his father.
Accordingly, the petitioner filed an application under Section 6 of the Hindu Minority and Guardianship Act, seeking custody of his son. He also moved an interim application for visitation and communication rights during the pendency of the custody proceedings. The Family Court, however, dismissed the application, citing the absence of a suitable neutral venue and concerns over potential “untoward incidents.” Aggrieved by this order, the petitioner-husband approached the High Court through the present writ petition.
Upon hearing the parties in detail, the Court noted that, by its interim order dated 16.05.2025, the petitioner had been permitted to make daily calls or WhatsApp calls to his son. The petitioner, however, submitted an affidavit stating that he was able to communicate with his son for only ten days, after which the arrangement was halted due to the continuous interference of the respondent-wife.
The Court then directed both parties to appear on 12.08.2025, along with their minor son, for an in-chamber hearing and interaction. Justice Mishra observed that during the meeting, the child appeared fearful of his father, the petitioner, addressing him as “uncle.” Strikingly, the child also referred to the wife’s second husband as his father. The Court concluded that these responses were likely influenced by coaching from 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, taking into account 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 objects to be shifted between parents at will. The Court underscored that visitation rights constitute an important parental right and must be determined solely in accordance with the child’s best interests.
As a result, the impugned order was deemed unsustainable and was set aside. The matter was remitted to the Family Court for a fresh hearing, in consultation with the parties and their counsel, to decide the place, frequency, and timing of visits. The lower Court was also directed to establish appropriate conditions to enable the petitioner to maintain telephonic or WhatsApp communication with his son during the pendency of the custody proceedings.
