Friends, you must have read/heard about the husband and wife who decided to go their own way, and they either opt for staying separate or obtaining a divorce from the court. In our country getting a divorce is a very complicated affair unless it is with mutual consent. Now if the couple has no child or children, then the matter comes who will get the custody of child/children. If either mother or father gets the custody of child/children, that court gives the other spouse visiting rights, so that he/she can meet the child/children. Generally, this is decided by the court or with mutual consent, and the day and number of hours for the visit are specified.
The above is all right for the children of legally married couples. Now if the child is born out of wedlock and is illegitimate as per law, could the biological father be given visitation rights when the Hindu Marriage Act recognizes the mother as the sole guardian? This type of father is known in legal language as a putative father, it generally means a man whose legal relationship to a child has not been established but who is alleged to be or claims that he is the biological father of a child who is born to a woman to whom he is not married at the time of child’s birth.
One case of this type came to Delhi High Court, in the case Kinri Singh vs Dheer Singh. The case was first heard by the lower court, which granted the visitation rights to the father, who could meet the minor child for two hours every day. The lower court granted the visitation to the putative father on two major grounds i) The Respondent has admitted the paternity of the minor child, and ii) the respondent is staying same building but on a different floor. This decision was challenged by the mother of the child and the matter came to High Court (HC).
The HC, on noting the tender age of the minor child who was less than 3 years old, modified the order
1 Instead of daily, the putative father shall have the visitation rights on alternate weekdays ie Monday, Wednesday, and Friday, on which days he will collect the child at 6 pm and return the child to the petitioner at 8 pm on the same day.
2 On Sunday, the respondent shall collect the child at 11 am and return the child at 5 pm on the same day.
3 The above visitation shall be subject to putative father and mother living in the same building in Defence Colony in New Delhi.
4 On Tuesdays, Thursdays, and Saturdays, the respondent can speak or interact with the child through video or audio call, between 6 and 8 pm for not more than 10 minutes.
The mother was not satisfied with the order, and she then approached the Supreme Court (SC).
Yesterday SC gave its order in this case. As of now, it has been established that the man is the biological father of the child, and the child is not illegitimate. The advocate of the father pleaded that since he has shifted to another, he should be allowed to take the child during the scheduled hours of the meeting, as specified by HC. The SC bench did not agree and said that he could meet the child at the Defence Colony flat as long as the mother resided there. It also directed both the putative and mother not to create any untoward situation when the man meets the child. SC told both the parties to move HC for any variation of the order regarding visitation rights, as and when the need arises.
It looks like the decision of HC upheld by SC is a little harsh on the mother. Imagine the plight of a woman when his lover ditches her when she becomes pregnant before marriage. She had to face all the hurdles of being an unwed mother. I fail to understand in this case, as the man has admitted and it is proved that he is the biological father, he is asking now for visitation right when the child is more than 2 years old. If he loves the child now then why did he ditch the child’s mother when she became pregnant? If he wants to be so caring about his child, then why he has not offered marriage to the child’s mother? To me, it looks like even if he had offered, the woman who is so cut up with him must have refused. Imagine the situation that even after the birth of the child the woman had to face the man who ditched her on a regular basis because they were residing in the same building.
HC and SC’s contention, in this case, was, that as the child needs the love/care from both mother and father during growing years, hence the child should not be deprived of the same. But the reality is, that there are more single mothers than single fathers in this world, which only proves that a single mother can raise the child on her own, without much interference from the biological father.
In the end, friends what is your view on this matter. Please do write in the comments column at the end of this blog.
Anil Malik
Mumbai, India
8th June 2022
Prakash Mahadalkar
I feel the biological father should have no moral or ethical grounds to visit the child unless he is willing to financially support the child and the mother for health , education and living expenses until the child becomes major or the mother gets married to another man.