THE HON’BLE Ms. JUSTICE B.S.

BHANUMATHI

Civil Revision Petition No.1594 of 2022

ORDER:

This revision petition is filed under Article 227 of the

Constitution of India against the order, dated 14.07.2022, allowing

the petition in I.A.No.548 of 2021 in HMOP No.115 of 2021 on the

file of the Court of the Principal Senior Civil Judge, Narasaraopet,

filed under Section 26 of the Hindu Marriage Act, 1955, to grant

visitation rights of the child, through electronic contacts, namely,

Whats-App once in fortnight in the interests of justice.

2. Heard Ms. M. Radha, learned counsel for the revision

petitioner, and Sri Ramachandra Rao Gurram, learned counsel for

the respondent.

3. The revision petitioner is the respondent and the respondent

is the petitioner in I.A.No.548 of 2021.

4. HMOP No.115 of 2021 was filed by the respondent herein

(husband) against the revision petitioner (wife) under Section 9 of

the Hindu Marriage Act, 1955 (‘the Act’, for brevity) to order

restitution of conjugal rights. The petition was contested. Pending

adjudication of the main proceeding, the husband filed I.A.No.548

of 2021 seeking visitation rights of the child. It is contended that

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the marriage of the petitioner with the respondent was performed

on 16.08.2018 and a male child was born on 16.07.2020, but after

the birth of the baby, differences cropped up between them about

the performance of traditional ceremonies of the newly born baby

and thereafter, the wife joined her parents at Narasaraopet on

29.10.2020 after the birth of the child, and therefore, the petitioner

used to visit the wife now and then and finally on 16.01.2021, he

visited the wife and the baby but, on that day, his father-in-law and

brother-in-law assaulted and injured him without any justifiable

cause, and therefore, he gave a complaint to the police against his

father-in-law and brother-in-law and consequently, his wife denied

his visitation rights, though he is very fond of the baby and wanted

to see his welfare and interest.

5. The petition was opposed by filing counter denying the

averments in the petition and further stating that the averments are

made for the purpose of filing the petition and that even prior to the

birth of the child, the husband suspected the fidelity of his wife and

openly proclaimed that the child was not born through him and he

never showed any interest to see the child nor did he care the

welfare of the child and further that the petitioner, with the political

backings, caused harassment to arrest the wife and her parents and

intentionally defaming them spreading rumors about the conduct

and character of the wife, and thereby, she alone is taking care of
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the child with the support of her parents. It is further stated that at

the tender age of the child, if the husband is permitted to get

connect the child through Whats-App, the husband would blackmail

the child emotionally and moreover the husband is angry and

temperament person as he attacked his wife and her family

members for silly reasons, and therefore, it is not safe for the child,

if the relief is granted and that this petition was filed only to harass

his wife without having any love and affection for her or the child

since the beginning.

6. After hearing both parties, the trial Court allowed the petition

and permitted the petitioner to have visitation rights to see the

minor child once in fortnight, physically, i.e., on 1st and 4th

Saturdays between 11 AM and 4 PM in the Court premises till

disposal of the main application.

7. Having been aggrieved by the order, the respondent (wife)

preferred this revision petition.

8. The learned counsel for the revision petitioner (wife) firstly

submitted that the relief which is not asked for should not be

granted and placed reliance on the decision of the Supreme Court in

Mrs. Akella Lalitha Vs. Sri Konda Hanumantha Rao &

Another1. She further contended that the petition under Section

1
2022 Live Law (SC) 638
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26 of the Act shall be independently filed and it cannot be filed as

an interlocutory application in a petition pending under Section 9 of

the Act and placed reliance on the decision of the Supreme Court in

Priyanka Vs Santosh kumar2. It is also argued by her that the

husband has no interest in the child at all as he suspected the

fidelity of the wife and birth of the child through him, and therefore,

it is only an attempt to further harass the wife and moreover, it is

not in the interest of the welfare of the child. However, lastly

submitted that the visitation through Whats-App is not objected, in

case if the Court is inclined to grant visitation rights.

9. The learned counsel for the respondent submitted that the

relief under Section 26 of the Act is an interim provision which can

be sought in any proceeding pending under the provisions of the

same Act, as can be understood from a bare reading of the

provision under Section 26 of the Act itself. He further submitted

that the decision of the Supreme Court in the case of Priyanka (2nd

supra) was rendered under Article 142 of the Constitution of India

and therefore, it is applicable specifically to the facts and

circumstances therein and moreover, in that case, the wife/

respondent remained ex parte in the proceedings under Section 9 of

the Act filed by her husband and sought transfer of the proceedings

due to her inability to attend the proceedings and that because she

2
2022 Live Law (SC) 1021
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remained ex parte, the relief under Section 26 of the Act was

granted to the husband, and therefore, the same analogy cannot be

adopted to the present case, where the facts are different because

the petition filed under Section 26 of the Act is opposed by the wife

by filing counter and the order was passed only after hearing both

parties.

10. Nextly, he submitted that when the petition was filed, since

the effect of Covid-19 was still prevalent and the movements were

restricted, the relief was claimed only for visitation through

Whats-App, whereas as on the date of passing of the order, the

Court rightly considered the current situation and in the interest of

the minor child, physical visitation rights were granted and so, no

illegality was committed in the impugned order. He further

submitted that the order under Section 26 of the Act is not

permanent and can be changed from time to time suitable to the

circumstances, and therefore, the decision in Akella Lalitha (1

supra) has no application to the present case. He further submitted

that in a case of minor’s issue, it is ultimately the welfare and

interest of the child which are paramount considerations and not the

convenience and pleasure of the parents and placed reliance on the

decision of the Supreme Court in Kumar V. Jahgirdar v. Chetana

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K. Ramatheertha 3 and has drawn the attention of this Court to

paragraph No.6 which reads as follows:

“6. We have heard learned counsel for both the parties at some
length. We have also perused the order of the High Court under
challenge. We are constrained to observe that the High Court in
its approach to the case has ignored the well-settled principle
that in a matter relating to the custody of a minor child, the
interest and welfare of the child is the paramount consideration
and not the convenience or pleasure of the parents. The learned
Judge while stating the facts has observed that "...the petitioner
(respondent herein) has married again whereas the respondent
(appellant herein) has remained unmarried ever after
separation. He is a stock broker by profession and he is more
prosperous, wealthy and affluent man with good financial
background." After noticing certain decisions cited before him,
the learned Judge observed in paragraph 11 of the order that
:"...while passing the order in case of custody of minor child,
the paramount consideration is the welfare of the minor child".
In paragraph 12, the learned Judge has observed:" Admittedly
he has not remarried. In event he had remarried, there could
not have been any guarantee that the child could have been
looked after well by the second wife..." In paragraph 14, the
learned Judge expressed the opinion the condition 8a (quoted
earlier) is not a healthy condition as it has lost site of the fact
that the welfare of the child is the paramount consideration. The
learned Judge has expressed his views by saying that "..Merely
there is a divorce and merely she has remarried again does not
mean that she can afford to ill-treat her child." In paragraph 17
of the order, the High Court observed: "..the petitioner is
although a divorcee, she is not doing any work, she has got all
the time in the world to attend to the needs of the girl.."

3
(2001) 4 SCC 682
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11. He further referred to the decision of the Supreme Court in

Yashita Sahu Vs. State of Rajasthan and others 4 wherein it was

held at paragraphs 20 to 24 as follows:

“20. It is well settled law by a catena of judgments that while

deciding matters of custody of a child, primary and paramount
consideration is welfare of the child. If welfare of the child so
demands then technical objections cannot come in the way.
However, while deciding the welfare of the child it is not the
view of one spouse alone which has to be taken into
consideration. The courts should decide the issue of custody
only on the basis of what is in the best interest of the child.

21. The child is the victim in custody battles. In this fight of

egos and increasing acrimonious battles and litigations between
two spouses, our experience shows that more often than not,
the parents who otherwise love their child, present a picture as
if the other spouse is a villain and he or she alone is entitled to
the custody of the child. The court must therefore be very vary
of what is said by each of the spouses.

22. A child, especially a child of tender years requires the love,

affection, company, protection of both parents. This is not only
the requirement of the child but is his/her basic human right.
Just because the parents are at war with each other, does not
mean that the child should be denied the care, affection, love or
protection of any one of the two parents. A child is not an
inanimate object which can be tossed from one parent to the
other. Every separation, every re-union may have a traumatic
and psychosomatic impact on the child. Therefore, it is to be
ensured that the court weighs each and every circumstance

4
(2020) 3 SCC 67
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very carefully before deciding how and in what manner the

custody of the child should be shared between both the parents.
Even if the custody is given to one parent the other parent must
have sufficient visitation rights to ensure that the child keeps in
touch with the other parent and does not lose social, physical
and psychological contact with any one of the two parents. It is
only in extreme circumstances that one parent should be denied
contact with the child. Reasons must be assigned if one parent
is to be denied any visitation rights or contact with the child.
Courts dealing with the custody matters must while deciding
issues of custody clearly define the nature, manner and specifics
of the visitation rights.

23. The concept of visitation rights is not fully developed in

India. Most courts while granting custody to one spouse do not
pass any orders granting visitation rights to the other spouse.
As observed earlier, a child has a human right to have the love
and affection of both the parents and courts must pass orders
ensuring that the child is not totally deprived of the love,
affection and company of one of her/his parents.

24. Normally, if the parents are living in the same town or area,
the spouse who has not been granted custody is given visitation
rights over weekends only. In case the spouses are living at a
distance from each other, it may not be feasible or in the
interest of the child to create impediments in the education of
the child by frequent breaks and, in such cases the visitation
rights must be given over long weekends, breaks, and holidays.
In cases like the present one where the parents are in two
different continents effort should be made to give maximum
visitation rights to the parent who is denied custody.”
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12. He also placed reliance on the decision of the Supreme Court

in Roxann Sharma v. Arun Sharma 5 , wherein the principles

governing the approach to be adopted in case of determination of

visitation rights were dealt with at paragraph No.20, which reads as

follows:

“20. We shall abjure for making any further observations as the

Trial is still pending. Keeping in mind the facts and
circumstances which have been disclosed before us, we set
aside the impugned Order dated 18.09.2014. It is not in
consonance with the previous order of a co-ordinate Bench and
in fact severely nullifies its salient directions. We set aside the
impugned Order dated 2nd August, 2014 inter alia for the
reason that it incorrectly shifts the burden on the Mother to
show her suitability for temporary custody of the infant Thalbir
and, therefore, runs counter to the provisions contained in
Section 6 of the HMG Act. We clarify that nothing presented by
the Father, or placed on the record discloses that the Mother is
so unfit to care for the infant Thalbir as justifies the departure
from the statutory postulation in Section 6 of the HMG Act.
Visitation rights succinctly stated are distinct from custody or
interim custody orders. Essentially they enable the parent who
does not have interim custody to be able to meet the child
without removing him/her from the custody of the other parent.
If a child is allowed to spend several hours, or even days away
from the parent who has been granted custody by the Court,
temporary custody of the child stands temporarily transferred.”

5
(2015) 8 SCC 318
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13. He has also referred the decision of the Allahabad High Court

in Payal Agarwal v. Deepak Garg6 wherein the visitation rights

under the Act and the summary nature of the proceedings have

been dealt with.

14. In reply, learned counsel for the revision petitioner submitted

that the decision in Kumar V. Jahgirdar (3rd supra) was also held

in a case where a petition under Section 26 of the Act was

independently filed.

15. Insofar as the first objection regarding the maintainability of

the interlocutory application filed under Section 26 of the Act, it has

not been raised before the trial Court and it is only for the first time,

this point has been urged by the revision petitioner during the

course of arguments even without a ground in the revision. That

apart, the decision which the revision petitioner placed reliance was

passed by exercising the jurisdiction under Article 142 of the

Constitution of India and that too in a transfer petition. Moreover,

the point for consideration in the decision is not whether an

interlocutory application is maintainable under Section 26 of the Act

or not. As such, for all these reasons, the revision petitioner cannot

rely on the cited decision in support of the proposition that a

separate petition should be filed.

6
Civil Misc. Writ Petition No.57980 of 2009, dt.19.01.2010.
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16. It is mainly contended that the relief not asked for should not

be granted. In the decision cited by the revision petitioner, what is

observed is that it is settled law that the relief not found on

pleadings should not be granted. It is further held that if a Court

considers or grants a relief for which no prayer or pleading was

made depriving the respondent of an opportunity to oppose or resist

such relief, it would lead to miscarriage of justice.

17. In the present case, since the interest and welfare of the child

is of paramount consideration as is well settled principle of law,

what is in the welfare and interest of the minor child shall be

considered, but not the wish of either of the parents or the

technicalities, so long as they don’t close the opportunity to the

party to oppose or answer. There is ground to consider the

argument of the learned counsel for the respondent that when the

petition was filed, there was still an apprehension of spread of

Covid-19 and the movements were restricted and so, the petitioner

could have asked the relief of visitation rights through online mode.

Irrespective of the prayer, if a Court considers that it is in the

welfare and interest of the minor child, the relief appropriate to the

conditions of a child can be granted.

18. In the present case, the revision petitioner vehemently

opposed the relief claimed by her husband on the ground that he

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refused to see the child after the birth mainly with the allegation

suspecting the fidelity of the revision petitioner and as such, there is

no genuineness in the relief sought by her husband. These are the

factual aspects which need to be examined during the course of trial

and as there is no evidence on these aspects, they cannot be

examined in depth. For the present, what is the welfare and

interest of the minor shall alone be taken into consideration.

Moreover, the parent not having the custody can be granted visiting

permission.

19. Though the petitioner sought visitation rights through

Whats-App, the trial Court granted him the relief of physical visiting

rights on specified days during specified time in the Court premises.

20. In case of Adarsh C. B Vs. Aswathy Sidharthan7, the apex

Court held that repeated visitation rights in the Court premises

would not be in the interest of the child as the environment during

which the visitation rights are exercised would also matter. In the

light of such observations, the relief granted in favour of the

respondent herein needs to be altered as frequent visitation rights

in the Court premises will have adverse psychological impact on a

minor child of a tender age.

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Spl. Leave to Appeal © Nos.2437/2023
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21. Inspite of giving an opportunity to both parties to have a

common place of their choice to have physical visits, they could not

arrive at any conclusion and finally, the mater was heard on merits.

22. It is the main contention of the revision petitioner that the

trial Court ought not to have granted physical visits as against the

relief asked for visiting rights through Whats-App.

23. Learned counsel for the respondent submitted that visiting

through Whats-App may not have bonding effect between the minor

child and the father as there was a long time gap between the birth

of the child and as on date, there had never been any visits to see

the child after a visit after the birth of the child.

24. In view of the disturbingly charged atmosphere between the

parents and the premises of the Court is not found to be congenial

in the interest of the minor child, grant of physical visiting rights at

this juncture may not be appropriate in the interest of the child.

Therefore, granting visitation rights through Whats-App which is

agreed by the revision petitioner would serve the purpose of initially

gradually develop acquaintance of the father to the child. On

developing bondage and acquaintance, the order can be suitably

modified later after some such visits. For the time being, it is

enough to grant visiting rights to the respondent through

Whats-App, as prayed for, giving liberty to him to later seek

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modification of the order by the trial Court leaving it open for the

trial Court to consider such request on merits depending upon the

facts and circumstances exist by then, uninfluenced by any of the

observations made in this order.

25. At this juncture, the revision petitioner expressed her inability

to comply the direction in the order impugned to make the child

available for visit on working 1st Saturday as she is an employee,

and requested to alter the 1st Saturday to 2nd Saturday and whereas

the visit on 4th Saturday can be unaltered.

26. Accordingly, the Civil Revision Petition is allowed in part

confirming the relief of visitation rights but altering the physical

visits to only through Whats-App and the direction to have a visit on

1st Saturday to 2nd Saturday. The rest of the order impugned shall

remain intact.

There shall be no order as to costs.

Pending miscellaneous petitions, if any, shall stand closed.

________________
B.S.BHANUMATHI, J
05-10-2023
RAR