The Supreme Court has said that a parent who is denied custody of their child is entitled to be able to speak to him or her for 5-10 minutes every day, unless under exceptional circumstances. In saying so, the apex court made these observations on ‘contact rights’ which are different from visitation rights.
A bench of Justices Deepak Gupta and Aniruddha Bose was hearing the appeal of a woman who was directed by the Rajasthan High Court to return to the US along with her minor three-year-old daughter. The HC had given this directive based on a plea filed by the woman’s husband for the wife to return to the US to finish their pending court proceedings there.
The couple was married in 2016, and the woman had moved to the US to be with her husband who was staying there already. Their daughter was born in 2017 there. However, they started having problems soon, with the husband and wife making allegations and counter-allegations against each other. The wife sought an emergency protection order in August 2018 in the US, and an ex parte preliminary protection order against her husband was passed. Soon after, she filed a petition in the same court in Norfolk for obtaining the sole custody of their child. Eventually, she came to India while court proceedings in the US were still pending.
While the Indian Supreme Court said that the woman being an adult spouse could not be compelled to travel to the US, they gave her two choices. She could either go back to the US within six weeks and have all her travel and accommodation expenses borne by her husband till court proceedings there went on, or hand over the child to the husband or his parents.
When it came to the matter of custody of the child, the Supreme Court addressed the issue of visitation as well as contact rights. It said that while adjudicating on the custody of the child, the most important consideration should be the welfare of the child.
The court observed that the right to love, affection, company and protection of both parents is not just a requirement but also a basic human right of the child, especially in his/her tender years. And even if the parents are “at war”, depriving the child of care, love and protection of any of the two parents cannot be justified.
“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,” the court said.
“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,” the bench added.
The court added that courts dealing with custody matters should clearly define the nature, manner and specifics of the visitation rights of the parent denied custody as well.
Further on the issue of contact rights, the judges said that in today’s day and age, it is easy to remain in contact. And while there are many options like email and phone, the best way according to them was via video calling. “Unless there are special circumstances to take a different view, the parent who is denied custody of the child should have the right to talk to his/her child for 5-10 minutes every day. This will help in maintaining and improving the bond between the child and the parent who is denied custody.”
Some countries, like the UK, already have laws on contact rights.