2024 INSC 1036

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. OF 2024
(ARISING OUT OF SLP (C) NO. 18240 OF 2024)

SUGIRTHA …APPELLANT

VERSUS

GOWTHAM …RESPONDENT

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
Signature Not Verified
miscellaneous appeal and upheld the interim
Digitally signed by
NEETU KHAJURIA
Date: 2024.12.20
18:55:03 IST
Reason:
visitation rights granted to the respondent–

SLP(CIVIL) NO.18240 of 2024 Page 1 of 10

 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, 19551, 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.

4. Respondent in October 2023, had preferred an

application under Section 26 of the HMA in the

1
In short, the “HMA”

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 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

SLP(CIVIL) NO.18240 of 2024 Page 3 of 10

 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

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 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 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.

SLP(CIVIL) NO.18240 of 2024 Page 5 of 10

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

SLP(CIVIL) NO.18240 of 2024 Page 6 of 10

 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 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

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 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

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 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 considering the
child’s tender age. The appellant, though

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 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.

……………………………………J.
(VIKRAM NATH)

……………………………………J.
(PRASANNA B. VARALE)
NEW DELHI
DECEMBER 20, 2024

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