Rajat Prafulla Pashine vs Shubha Rai @ Shubha Rajat Pashine

Heard.

The present appeal is filed against the order dated 29.10.2022 (Annexure P-1) passed by Family Court, Durg, C.G. The issue in this appeal is with respect to the custody battle wherein visitation and contact right was given to the appellant/ father by an interim order.

Learned counsel for the appellant/ father submits that the order dated 29.10.2022 (Annexure P-1) only refers to visitation and contact right given under proceedings of Domestic Violence and no independent orders have been passed, therefore, in case of withdrawal of the case of Domestic Violence by wife, the valuable right of the appellant would be defeated. Therefore, the counsel for the appellant submits that the appellant/ father cannot be deprived of his right to shower love and affection to the child and at least the visitation and contact right as has been affirmed by the Court in the matter of Domestic Violence be given to the appellant/ father.

Learned counsel for the respondent submits that there is already an order in favour of the appellant, therefore, no separate order would be required.

We have heard learned counsel for the parties and perused the records.

We have gone through the order dated 29.10.2022 and perusal of the order shows that learned Family Court has referred to visitation and contact right which was given to the appellant in a proceeding under Domestic Violence Act by wife and no independent orders were passed. Therefore, the submission of the learned counsel for the appellant that in case of withdrawal of the domestic violence proceeding by the wife, no independent order would be operative to ensure the visitation and contact right in favour of the appellant appears to be logical. The visitation and contact right is necessary to ensure that the child is kept in touch with other parent and does not lose social, physical and psychological contact of either parents. The Supreme Court in the matter of Yashita Sahu Vs. State of Rajasthan (2020) 3 SCC 67 has held that only in extreme circumstances one parent should be denied contact with the child and welfare of the child should be paramount consideration. The parents may be at loggerheads and may clamp allegations on each other but the welfare of the child requires to be tested before the Court.

In a custody battle, the impact of the rejection order for visitation or contact right travels long which may have influence on the mind of the child and if the visitation right granted to one parent is snapped then in that case the mind of the child may be influenced by the other parent which would have a trapping of finality while adjudicating and taking consent of the child at a later stage in custody case. Therefore, in our opinion, in a like manner of the order, though it may appears to be interlocutory in nature but may have adverse effect on the valuable right of the parties before the effect of the order culminates into final judgment of custody.

Accordingly, we direct that the petitioner shall be allowed to take the child to his custody from 11.00 am to 7.00 p.m. on 1st and 2nd Sunday of the month and would be allowed to meet the child on every last Sunday of the month in between 12.30 p.m. to 1.30 p.m. Further to keep the contact right the appellant/ father shall be allowed to call the child on Monday, Wednesday and Thursday in between 7.00 p.m. to 8.00 p.m. by video call to develop the contact right and the respondent shall give access to such video calls. It is submitted at the bar that both the parties are in hold of smart-phones, therefore, if they have different phone numbers that shall be exchanged accordingly. Learned counsel for the appellant prays for overnight custody of the child. Considering the fact that the child is only 6 years, at this stage, we do not deem it proper to grant over night custody to the appellant/ father.

Since the custody case is already pending before the learned Family court, the learned Family court is directed to adjudicate the case as expeditiously as possible looking to the welfare of the child.

Accordingly, the appeal is disposed off.