Legal Advice

Visitation right of father: Wife does not allow me to meet my son

Question: I want to know about the visitation right of father. My wife has been living with her parents for nine months. She does not allow me to meet with my eleven months old son. She is not even ready to celebrate his first birthday with me. It is more painful for a father because he cannot meet his lovely child. Sir, I am very depressed and want to meet and take him away from her mother. Is there any law which can solve my problem? 

Advise

Father is the natural guardian of his child. According to section 6 of the Hindu Minority and Guardianship Act 1956, father is the natural guardian of his minor son and unmarried daughter. After him the mother becomes the natural guardian. There is an exception in Section 6 which provides that the child below the age of five years shall ordinarily be with the mother.

Guardianship and Custody of child

Father, however, cannot take custody of his new born child but he has the right to meet or spend some time with his child. Section 13(2) the Hindu Minority and Guardianship Act 1956 enumerates that: no person shall be entitled to the guardianship by virtue of the provisions of this Act or of any law relating to guardianship in marriage among Hindus, if the court is of opinion that his or her guardianship will not be for the welfare of the minor.

When you apply for custody of your eleven months old child, the court will reject your application. The court will only consider the welfare of the child. Conduct, marital relations and behaviour of parents are immaterial in respect of custody of a child. 

Visitation right of father

When the child is below the age of five years and living separately with his mother, the father has a visitation right. He cannot take custody of his child because it is in the welfare of the neonatal to be with the mother. The mother feeds him and he depends upon his mother till the age of five years. 

A non custodial father i.e. a father who cannot get custody of a child under the law, has a visitation right. In this situation you have a visitation right because the father should also spend some time with his child. It is also necessary to keep the child away from the personal differences of his parents. You can spend time with your child on weekends, holidays or festivals. 

The facts of your case do not allow you to apply for a visitation right because there is no separation between you. Father’s visitation right accrues after dissolution of marriage, divorce or judicial separation. When the marital relationship comes to an end the question about guardianship, custody of child or visitation rights arises. 

You should try to bring your wife back to the matrimonial home. Try to settle your dispute and don’t indulge in frivolous court cases. It is good for you to talk with your wife and rule out her misconceptions.

Shivendra Pratap Singh

Advocate

High Court Lucknow

Family Law

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