Upgrad LLM

urgent visitation appli u/s 26 rejected by district jd


please help

i had applied in-person for regular visitation every sunday u/s 26 for minor daughter one year old

district judge passed order that child will be brought to court on next date of hearing (after 2.5 months) and to apply from time to time; no fixed visitation granted

then i applied  again in-person for urgent visitation u/s 26 to (my parents) granparents of the child but the district judge did not accept it , said there is no provision and put it for next date of hearing; result that my parents who stay far away and visit me once in a year could not see the child. 

how can i get urgent visitation to relatives and my parents, birthdays,festivals ?

any judgement or law point which i can quote to get urgent visitation

any other section through which i can get such a relief other than 26 hma ; i shall file that petition in-person

can i deny to pay maintenance since the court has denied me regular as well as urgent visitation saying i am not an ATM machine and justice has been denied

please reply all or call or sms

dr rajesh


Senior Partner

@ Author,

I am confused to read that the Application was made before a District Judge ? Why, bze a S. 26 HMA can be filed as ‘stand alone’ before a
Principal Judge Court who is PO for a Family Court. I think you filed it before a Principal Judge not District Judge. This besides the point I will come to point advising you that citations helps only after submissions on facts read with grounds further Law on subjects are argued properly before any Ld. Judge and as ratio deserendi citations comes as authorities referred while wrapping up once arguments.

I feel when you were forced to agree to visit your 1 plus yr. old child that also at Court on next date which is after some months away, all you should have done was to challenge this interim Order before a superior Court with Urgency Application(s) and serving dasti Notice(s) to opposite party and/or to her nominated Counsel ridding over the technicalities. A child visitation / custody contest is never struck on the name of ‘technicalities’ remember this.

I suggest to read my discussion on similar subjects with my old friend  
http://www.lawyersclubindia.com/profile.asp?member_id=83191 as well as it is refreshing to know more and more father’s are appearing as in Person contesting their child(s) custody and or visitation cases. Well until and unless the mother of the child has not filed a criminal case against the father till then my stress to folks like you would be to not allow any third party decide the fate of your child, it is going to be you two who shall decide the best interest. Bring her to table from day one with two options on each instances, either a mother will pick one and if not then Court will grant a middle path out to parents keeping best interest of child.

Now, here you will say is this the best interest that the Court thought of ? I would say NO. Probably pleadings lacked stress at given point of time ! Hence immediately do a file inspection and write down the complete Order by hand and get it true typed of original and approach superior Court to set aside this interlocutory Order and grant meaningful visitation rights to child to see / meet / spend time with her / his own natural father.

Before the gyan becomes overwhelming I would like to know what you understood from below (you are free to revert and/or move ahead and I am not taking a interview here of another father so chill pill.........…);


'parens patriae':

This right of the Courts, have been guaranteed to the children across the world through various legislations including the concept of PARENS PATRIAE based on the best interest of the child in the AMERICAN LAW and THE ENGLISH LAW, and differently in other countries.


The State Interest: Parens Patriæ is the doctrine under which the state alleges an interest in the care and custody of children (and others not competent to represent their own interests). This doctrine, literally asserting that the king is the parent of the state, was formulated in England in the thirteenth century to assert the state’s role as guardian of those who were mentally incompetent. The notion that the king (or the government) is the parent of the entire state is quaint; the assertion that the state has a compelling interest in the care, nurturing, and


……….The classical interpretation, for example, might appear to receive support from the fact the rights of parents over their children are limited, potentially override able, fiduciary rights. For suppose that, ab initio, these rights reside in the state under the doctrine of parens patriæ and are entrusted by the state to the natural or adoptive parents. This seems to explain nicely the fiduciary aspect of the rights, why the rights are limited and why the state retains the right to judge when the parents have violated the trust. The state, on this account, is the trustor. As such, the state can set the terms and limits of the trust relationship, specify the ends for which it is constructed, and retain the right to determine when it has been violated.


………..Does not the state have, under the doctrine of parens patriæ, a responsibility to exercise parental rights for the benefit of the children? Can the state, unlike the parent, do no wrong in the exercise of its parens patriæ authority? Are there no limits on this authority? I believe that the state is at least as bound by considerations of the interest of the child as are the parents. The state’s right over children is both limited and non-absolute, as is the parents’.



         The same provisions of law and the role of the State as a guardian is revisited in 
portions of the article titled “ARBITRATION OF CUSTODY AND VISTATION DISPUTES” published in the

Supreme Court Justice Lewis R. Friedman, in Stanley G. v. Eileen G. [FN2] held that a provision in a divorce judgment, which incorporated and merged a stipulation of settlement and arbitration award of a Jewish religious court, a Beth Din, providing that the Supreme Court's jurisdiction to enforce or modify the judgment was contingent on "the consent in writing of said religious court," was inappropriate and unenforceable with regard to matters of custody and visitation. In so doing the court rejected the long-standing rule of the First Department and adopted the reasoning of the Second Department.


Parental agreements covering the custody and visitation of their children are written in sand. Under the parens patriae power and responsibility of the court, [FN3] the existence of an agreement is at most only a single factor for the court to use in determining custody and visitation. There is no finality to a contract between parents regarding custody, because the parens patriae power of courts over the custody of children transcends any such agreement.


Children Not Parties to Agreements

Notably, children are not parties to parental agreements. Domestic Relations Law (DRL) s240 imposes on courts the responsibility of awarding custody and visitation as "justice requires, having regard to the circumstances of the case and of the respective parties and to the best interests of the child." That responsibility requires that in many, if not most, instances, there be an evidentiary hearing on the issue of custody and visitation, even when custody is uncontested. [FN4]


Earlier lower court cases rejected arbitration clauses and agreements enforceable in controlling custody and visitation issues.


Not surprising is the decision of the First Department in Sheets v. Sheets, [FN5] which is dedicated to letting parties control their own futures by establishing the rule that arbitration provisions are not against public policy and are enforceable, subject naturally to a court's authority check to assure all is well and the results are in the best interests of the child.


Best Interests of Child

It established a two-stage process, stating: Courts will, as a general rule, enforce an agreement between a husband and wife regarding custody of children so long as the agreement is in the best interests and welfare of the children. The inherent power of the courts to safeguard the welfare of children would not, however, be dissipated by a separation agreement that provided for settlement of custody disputes and related matters by some arbitration tribunal. Necessarily, an award rendered on a voluntary submission of any such disputes to arbitration would still be subject, in a direct proceeding affecting the child alone, to the supervisory power of the court in its capacity as parens patriae to the child.



The Hon’ble Supreme Court has reiterated its role as PARENS PATRIAE in case of such children in its judgments quite recently.

Re.: Contempt Petition (Civil) No. 394 of 2009

In Dr. Rajesh Ranjan Vs. Dr. Anupama Tandon & Anr.

Date of decision: 30-11-2010

[The above Re. is for you to use as father / applicant]


Re: I.S. Sirohi Vs. Commissioner of Police,

Criminal Appeal No. 1361 of 2008

Dated: 27.08.2008, the Hon’ble Supreme Court of India held that:


“Since we were considering the writ                     
petition wherein a writ in the nature of
habeas corpus, as far as the two children
are concerned, had been prayed for and
which had been dismissed by a one
sentence order of the High Court, we were of
the view that since the children have been
separated from the paternal grand-parents
as well as their father for almost two years, it
would be in the best interest of all concerned,
and especially the children, to pass
appropriate interim orders to enable the
paternal grand-parents of the children, as well
as the husband of the respondent No.4, to
have access to the children. We are fully alive
to the fact that this is not a custody proceeding,
but, in the facts and circumstances of the case,
we are of the view that the children
should also not be alienated from the
company and affection of their father
or paternal grand-parents.
In our view,
the children require the care, love and
affection, both of the father's side of
the family, as well as that of the mother,
and that none of them should be denied
access to the children.”


[The above Re. is for grandparents of the child use as co-applicant i.e. they should have been made party first of all under Memo of Parties on first instance and or alternate would be for them (grandparents) is to file a separate standalone interim visitation Application citing foolish fights of DIL and their son and their grandchild thus is loosing company of his/her grandparents in between and they (means grandparents) don’t have much years left to see this getting over, hence meanwhile atleast grant visitation to us on such and such occasions since we would like to travel all the way form our native place just to continue our ties with our only grandchild etc. etc. are prayer material for consideration!]

However all above besides the point a custody and vistation applications have much wider appeal and re. if filed under Guardians and Wards Act as various Sections of this Act are much much wider than probable narrow interpretation done by various Courts in a HMA proceedings for visitation / custody and if you read the very first openning wording lines of S. 26 HMA you will see the 'restrictions' there...........

All the best………….



Don't get emotional...shed the resistance, and you will find solace.


Even doctors don't allow relatives of patients to visit relative as per their convenience....


Wife can raise atleast thousands of issues.................. and inconveniences.............. in regards to 1 years old child! ..................................And may also demand that ...........................such visits can not be made binding on her ..............................as it is she who has to look after the health etc of child.


Can a Hon judge make it binding on wife to ensure visitation irrespective of whether child is sick or not that day?....NO


If kid was a bit grown up child above 5 years, then it was more suitable to ask.

But again, wife can claim any last minute exigency to refuse you the viisitation!!!


Why are you getting into battle where you side is weak?


This is a proven harrassing tactic by litigating mothers!


Instead convince wife emotionally that ............

Would she deprive her daughter from the love and company of her biological daughter?

In the dispute why kids should be held for ranson?

After she grows up isn't she going to ask questions about her father?

If kid, in future, gets to know that wife resisted even the visitation to father when kid was a toddler, definitely adolescent mind of any kid in future would be pained



Don't worry...........Without your signature she can't change even the spelling of her bilogical father, whatsoever the consequence of divorce suit.



Anyways now both spouses have come to stage of fighting that they are worrying about 'winning' divorce (instead of losing to it).


But divorce....whether won or given, it is applicable to both But I must tell you that.....'winning' matters a lot............than 'giving it'............ for the rest of the life....But ....................pundulum keeps swinging to both directions endlessly....otherwise Mutual consent is the best for both and the child as well if you have come to decision to break apart now!


Good luck, and have patience!!

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