SUGIRTHAversusGOWTHAM

                   [2024] 12 S.C.R. 2089 : 2024 INSC 1036

                                       Sugirtha
                                          v.
                                       Gowtham
                          (Civil Appeal No. 14833 of 2024)
                                  20 December 2024
               [Vikram Nath* and Prasanna B. Varale, JJ.]


                                Issue for Consideration
          Whether a child can be made to travel 300 kms to enable the
          father to exercise visitation rights to the child.

                                       Headnotes†
          Matrimonial disputes between parents should not be an
          impediment to a child’s right to have company of both parents –
          Interest of the minor child is paramount:
          Held: The matrimonial disputes and grave allegations between
          parents should not be an impediment to a child’s right to have care,
          company, and affection of both the parents – Though the child was
          in the care of the father for only 2 months after his birth, it would not
          compromise the right of the father to visit and enjoy the company
          of the child – The interest of the minor child is paramount – While
          the father has the right to visit the child, it cannot be at the cost
          of the child’s health and well-being. [Paras 14, 15]

          Directions issued by High Court modified to the extent of
          place of visitation:
          Held: In this case, the High Court had directed the mother to travel
          with the child from Madurai to Karur, which was about 150 kms
          away on every Sunday – Considering the interest of the child as
          the paramount consideration, the Hon’ble Supreme Court directed
          the father to travel to Madurai on every Sunday, and visit the child.
          [Paras 16, 17]

                                    List of Keywords
          Interest of child is paramount consideration.



*Author
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                               Case Arising From
      CIVIL APPELLATE JURISDICTION: Civil Appeal No. 14833 of 2024
      From the Judgment and Order dated 21.03.2024 of the High Court
      of Judicature at Madras at Madurai in CMAMD No. 118 of 2024

                             Appearances for Parties
      Aadarsh Kotihari, Akhil Ranganathan, Dhilipan Pandian R.C.,
      Rishabh Dahiya, Utpal Sharma, M/s. Vimalpani & Co., Advs. for
      the Appellant.

                      Judgment / Order of the Supreme Court

                                   Judgment

      Vikram Nath, J.

1.    Leave granted.
2.    The present appeal arising from the Special Leave Petition No. 18240
      of 2024 challenges the validity of the judgment dated 21.03.2024
      passed by the Madras High Court’s Madurai Bench in C.M.A. (MD)
      No. 118 of 2024. The High Court, through the impugned order, has
      dismissed the appellant–mother’s miscellaneous appeal and upheld
      the interim visitation rights granted to the respondent–father and
      modified the directions passed by the Family Court.
3.    Facts giving rise to the present appeal are that the parties herein
      got married on 09.09.2021 and a daughter was born to them on
      06.06.2022. Shortly after birth of the child, in June 2023, the appellant
      filed a petition for dissolution of marriage under Section 13(1)(ia) of
      the Hindu Marriage Act, 1955,1 on the ground of cruelty. Appellant
      in her petition contended that the respondent had continuously
      been committing domestic violence on her as well as the child. He
      had deserted them on 01.07.2022, and when he returned later,
      he attempted to kill them on 16.08.2022. She has also asserted
      that he would also beat up the child for absolutely no reason. She
      further submitted that the parties have been living separately since
      18.08.2022.


1    In short, the “HMA”
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                          Sugirtha v. Gowtham


4.   Respondent in October 2023, had preferred an application under
     Section 26 of the HMA in the divorce proceedings, seeking visitation
     rights during the pendency of the proceedings. The Family Court
     allowed the respondent’s application and in its order dated 10.11.2023
     directed that the appellant should take the child to Karur, Tamil Nadu,
     every Sunday in the morning from 10:00 hours to 12:00 hours, and
     hand over the child to the respondent in the campus of the Kalyana
     Pasupatheswarar Temple, Karur.
5.   Appellant approached the High Court against the above judgment of
     the Family Court on the ground that she is now residing in Madurai
     and the distance between Madurai and Karur is 150 kilometers,
     and thus the long travel of 300 kilometers every Sunday would be
     adversarial to the health of the child. Further, she has also contended
     that there is continuous death threat to the life of the appellant and
     the child; the respondent has never taken care of the child, the child
     has never been in his company, and thus, respondent is effectively a
     stranger for the child. Therefore, such visits would only be a source
     of mental agony to her.
6.   The High Court, while dismissing the miscellaneous appeal filed
     by the appellant, observed that since the father is also the natural
     guardian of the child, he is also entitled to have the custody of the
     child. The High Court made attempts at uniting the parties in the
     interest of the child, but the reconciliation attempts have failed.
     Thus, the High Court while noting its disappointment towards the
     failed attempts at reconciliation, observed that the agony of missing
     the early childhood of one’s offspring cannot be prolonged for any
     of the parties. Thus, the High Court modified the directions of the
     Family Court and directed the appellant to take the child to Karur
     on every Sunday and hand over to the respondent between 10:00
     AM to 02.00 PM, at the place mentioned in the application before
     the Court below or any other place in Karur which is convenient due
     to the summer condition, taking into consideration the tender age
     of the child, for a period of two months and thereafter, hand over
     the child for alternative weekends till the Guardian Wards Original
     Petition is decided.
7.   The appellant is before us challenging the above judgment of the High
     Court on the ground that this set up envisages a travel of about 300
     kilometers, to and from Karur, every Sunday, causing great difficulty
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     and hardship to the minor child. She has further submitted that the
     respondent is a stranger to the child. It is natural that a minor child
     of such tender age i.e., two years will get extremely uncomfortable
     from the presence of the respondent. That the daughter was born
     on 06.06.2022 and the parties have been living separately since
     18.08.2022, and thus, the respondent has never stayed with or
     cared for the child. Owing to the history of domestic violence, threat
     to life, and negligence of the respondent, such visitation rights to
     the respondent would be completely averse to the best interest of
     the minor daughter.
8.   This Court, while issuing notice, had noted that the limited grievance
     raised by the appellant in the present appeal is that while passing
     the impugned order, the Division Bench of the High Court did not
     take into consideration the fact that the venue for the respondent
     to have access to the two years old minor child of the parties is
     situated 150 Kilometers away from the place of the residence of the
     appellant, which is at Madurai.
9.   We have heard the learned counsel for the appellant, whereas no
     one has entered appearance for the respondent, despite service of
     notice.
10. It is also on record that the mediation proceedings between the
    parties have failed.
11. It is an admitted fact that the minor daughter was born to the
    parties on 06.06.2022 and they have been living separately since
    18.08.2022. Further, it is also admitted that both the parents are
    doctors by profession, and while the appellant resides in Madurai
    with the minor daughter, the respondent is a resident of Karur. The
    distance between the two places is about 150 kilometers.
12. While the observation of the High Court that the father being the
    natural guardian cannot be denied of the care and custody of the
    child and that his agony of missing his child’s childhood cannot
    be prolonged, is sound and fair, but the same cannot override the
    interest of the child.
13. The submissions on behalf of the appellant pertaining to the
    history of domestic violence and threat to life cannot be gone
    into at this stage of deciding interim visitation rights. These are
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                            Sugirtha v. Gowtham


     serious allegations which require careful consideration, both on
     facts and evidence.
14. We also recognise that the child has effectively been in the care of
    the respondent for approximately two months only, as the parents
    started living separately shortly after her birth. But this does not
    compromise the respondent’s rights as a father to visit and enjoy
    the company of his daughter. The matrimonial disputes and grave
    allegations between parents should not be an impediment to a
    child’s right to have care, company, and affection of both the
    parents. It is evident from multiple failed attempts at mediation that
    the parties are not inclined to reconcile. While no guardianship or
    custody petition has been preferred by the respondent, the visitation
    rights of the father, as prayed in the application, require a careful
    and empathetic consideration during the pendency of the divorce
    proceedings.
15. In all of this, the interest of the minor child is paramount. In the process
    of adjudicating upon the rights of the parents, her health cannot be
    compromised. Further, while the respondent has the right to visit
    the child, it cannot be at the cost of the child’s health and wellbeing.
    Keeping in mind the best interest of the child and the interests of
    the parents, we agree with the High Court to the extent of granting
    certain visitation rights to the respondent, but the directions and set
    up to enable the same appear to be adversarial to the child and
    require to be modified.
16. The directions passed by the High Court as well as the Family Court
    are not supported by any cogent reasons for allowing the visitation
    to take place at Karur. These orders do not provide any justified
    reasons and do not appear to have kept the best interest and welfare
    of the child as paramount. Thus, keeping the interest and well being
    of the child as the priority, we deem it appropriate and just to move
    the place of visitation from Karur to Madurai.
17. Considering the best interest of the child, her tender age, and health,
    we direct that:
     i.    Respondent shall be allowed to visit the minor daughter every
           Sunday between 10:00 AM and 02:00 PM.
     ii.   Such visits shall take place in Madurai, in a public park or
           a temple premises, and in the presence of the appellant
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              considering the child’s tender age. The appellant, though must
              be present, shall stay at a distance of approximately 10 feet.
     iii.     The child shall be handed over to the respondent at the place
              of visit in Madurai at 10:00 AM on Sundays and be returned
              to the appellant by 02:00 PM.
18. The appeal is accordingly partly allowed, in respect of the limited
    question of place of visitation, and the judgment of the High Court
    is modified to the extent of the above directions.
19. Pending application(s), if any, shall stand disposed of.

     Result of the case: Appeal partly allowed.



     †
         Headnotes prepared by: Vidhi Thaker, Hony. Associate Editor
                                 (Verified by: Liz Mathew, Sr. Adv.)