The Tripura High Court in its order dated January 4, 2022 suggested that both parents who were fighting a matrimonial battle must share the custody of the children, not on the visitation right of the parent but on the visitation right of the children with the parent in the larger interest of the children since the children cannot be deprived of the love and affection of both the parent.
The high court also added that parents cannot be a guest in the life of the children.
The petitioners (wife & minor children) approached Tripura HC under Article 227 of the Constitution of India for invoking the power of superintendence to set aside March 2021 order passed by the learned Judicial Magistrate 1st Class Agartala, West Tripura.
The petitioners further wanted a direction upon the respondents (husband/father & husband’s mother) to grant the petitioners residential accommodation in the residence of the husband. According to the wife, under compelling circumstances, she had taken a house on rent and was living there with her minor son and daughter.
According to the wife, she was burdened with the payment of rent from the rented house, and also they were living in the rented house without proper furniture, utensils, etc. Due to this, the petitioners filed a case under Domestic Violence Act, 2005 which was registered seeking various reliefs.
The husband filed an objection praying for dismissal of the interim prayer made by the petitioners. Hence, this instant revision petition.
Maintenance Demand by Wife
The petitioner wife wanted directions from high court instructing him to allow her and her children access in the shared matrimonial home. The wife also wanted the husband to pay additional maintenance of Rs 20,000 per month apart from the maintenance of Rs 35,000 per month for additional expenses incurred by the petitioner-wife.
Tripura High Court:
Justice Suhanjit of the Tripura High Court heard both parties in the presence of minor children and respective counsels.
The Court suggested that the parents must share the custody of the children not on the visitation right of the parent but on the visitation right of the children with the parent in the larger interest of the children since the children cannot be deprived of the love and affection of both the parent. The high court remarked,
It is needless to say that parents cannot be a guest in the life of the children. Allowing a parent to visit the children occasionally and periodically for few minutes in Court, Police station, Malls, Temple, and the house of the parent in whose custody the children are may not be a just decision towards the children.
The children must get absolute freedom with each parent, to know them and understand them better instead of being tutored by one parent against another.
In view of the same, this Court feels that children should be given visitation rights to and stay with the parent but not the parent visiting the child.
Accordingly, the Tripura High Court laid down the following conditions for both parents:
- Mother of the children (minor son and daughter) shall have custody from Monday to Thursday of the week and the father will have custody of the children from Friday to Sunday with overnight stay wherever the child is with the respective parents
- As agreed earlier, the father shall continue to pay the maintenance amount of Rs 35,000. The father shall bear the expenditure of the education of the children and he shall also provide suitable accommodation of 2 (two) bedroom hall, kitchen and will pay the rent in addition to the Rs 35,000 per month maintenance which he is already paying
- During vacation, the children shall stay with the respective party equally, whether it is the first half of the vacation or the second half of the vacation. The option is given to the mother to choose the first half or the second half
- During vacation if the children are willing to travel either with the mother or with the father or both parents accompanying the children anywhere in India, the father shall take steps for the travel, food and accommodation and shall bear the expenses
- On the occasion of any festival/Birthday of the children, they shall stay for one half of the day with the mother and the second half of the day with the father. In the event, if both parents intend to jointly spend the whole day with the children, it is open for them to do so
- During Durga Puja to Lakshmi Puja festive days, in the vacation period, the children shall stay equal days with the father and the mother. The choice is given to the mother for choosing the first half or the second half of the vacation
The court laid down strict conditions if either parent indulged in tutoring the children against other parent. The court ordered:
- In the event if any of the parent are not willing or tutoring the children not to go with the other parent, this Court has given liberty to the deprived parent to approach the concerned SHO with this copy of the order and seek for custody of the children as per the condition indicated above
- On receipt of such information from the parents, the concerned SHO shall immediately make arrangements of handing over the custody of the children to the other parents
- The concerned SHO shall implement this order immediately as and when it is requested by the parent
Unforeseen Expenditure to be borne by Father
The court further noted,
In the event of any unforeseen expenditure arise in respect of the children, the father shall look into the same and fulfill it.
Concluding the matter, the court ordered all other pending cases to be withdrawn, including the one filed by wife under Section 498A. The high court said,
Parents are free to talk to the child over phone/video calling as and when required.
Both the parties undertakes to withdraw and close all the cases pending before different Courts which has been filed against each other including ST(T-1) of 119 of 21 filed under Section 498A pending in Court No.ADJ-5. In view of the above visitation conditions and maintenance, both parties are at liberty to place this matter before the appropriate Court or forum in respect of any pending matter to get it closed.
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