Divorce. A process that was socially forbidden in India a few centuries back. There were few cases of divorce back then but in most of the cases, women used to be the ones who suffered more after the divorce. Whether we talk about financially, socially, or mentally she used to lose on every end. Therefore, in past, no woman dared to give divorce her husband. Of the few cases that occurred, it was the husband who gave divorce generally.
But, in this era women and men have equal footing in society. They are financially independent now, which allows them to have their own name and social circle. But whether back then or now children are the ones who suffer the most from this process.
Child’s Custody
After a couple separates and they have any offspring, the question of his/her custody arises. Who will the child or children get to stay? Mother or father?
Custody is a legal term regarding the guardianship of a child after his/her parents’ divorce. Custody can be claimed by both mother and father. The custody cases are decided according to the laws of The Guardian and Wards Act, 1890.
There are many factors considered while deciding on a custody case.
Factors Considered While Deciding the Custody of a Child: –
- Safe-keeping of the child
- The ethical upbringing of the child
- Good education to be imparted
- The economic well-being of the guardian
Types of Custody: –
- Physical custody – Physical custody when awarded to a parent, implies that the minor will be under the guardianship of that parent with visitation and periodical interaction with the other parent.
- Legal custody – Legal custody of a child basically means that the parent granted the legal custody takes every decision for the child.
- Joint custody – Joint custody means that both the parents will take turns in keeping the child with them. The exchange may be done in 6 months or a year. The time period shall be decided by both the parents.
Difference Between Custody and Visitation Rights
When you file a case for custody in court it may take a few years till the judgment of the case. But till the case has concluded the father or the grandparents may file for the right to visitation. Custody of a child makes you the legal guardian of the child and gives you the decision-making power for the child. Right to visitation allows to you to visit your child or grandchild every fixed period of time like once a week for 2 hours.
Visitation Right of Father and Child’s Grandparents
In the case of young children, the court usually gives the custody of children to the mother as the young child requires the mother more than the father. And if the financial condition of the mother is not satisfying then the court may ask the father to provide the mother with maintenance.
If the custody case is still in court and the temporary rights of custody fall in the hands of the mother, it becomes harder for the father and the grandparents of the child to visit their grandchildren. Also many times, the court used to deny them visitation rights.
But, now after the judgments of the Bombay High court and supreme court, the situation has changed. The judgments of these courts said that such right must be granted. The court may grant them the right to visitation till the conclusion of the case.
Cases of Court Supporting the Visiting Rights of Father and Grandparents
- Anuj Chaturvedi Vs Jyoti, 2019 – Supreme Court
In this landmark judgment of the Supreme court of India, it stated that generally it takes a long time for the judgment of a custody case to be delivered but if there is an application for visitation rights attached to it then the court must take cognizance of it as soon as possible. And if any family court is granting visitation rights to the father or the grandparents then they must make sure that the family actually gets to visit the child. The court may order the mother to bring the child to meet the paternal side of the child at any public institution like the mediation cell of the court or police, mall, park, or any other public institute.
If you want the visitation rights of your child you can attach your application along with the custody matters. This is called an interim measure. Also, you need to cite the judgment of Anuj Chaturvedi Vs Jyoti (2019) for the court to grant your application as with this judgment the supreme court has clarified that the visitation rights not only need to be given but also the court must make sure that they are implemented.
- Gaurav Suresh Tingre vs Priyanka Gaurav Tingre, 2022 – Bombay High Court
In this case, a grandfather filled a petition in the Bombay high court through his son (father of the child) for the visitation right of his grandson, citing the reason that his health has been deteriorating from June 2021 and he probably won’t be able to wait till the judgment of the custody case. Therefore, the high court granted him the right to visitation in every fixed period of time as children have the right to love and affection from parents and grandparents. It is essential for the personal development and overall well-being of the children.
Conclusion
Divorce has become common in India now. And the children from such marriages have to go through custody trials. Many times, if the child was with the mother, the paternal side was not allowed to meet the child. And the court was also not much supportive of granting the visitation right. But, now every father can grandparents can get visitation rights from the court so that they don’t have to stay away from the child till the custody case is still in trial. If you are going through a similar problem then you can submit an application for visitation rights along with the custody process in court.
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