The Uttarakhand High Court reaffirmed that courts must not judicially enforce custody or visitation rights against the clear wishes of a minor, especially when supported by counseling reports. This judgment affirms established Supreme Court precedent, with direct implications for family courts handling guardianship and visitation disputes.
Summary
| Category | Data |
|---|---|
| Case Name | AO/580/2023 of GAJENDRA SINGH Vs SHIVANI |
| CNR | UKHC010206552023 |
| Date of Registration | 27-12-2023 |
| Decision Date | 27-10-2025 |
| Disposal Nature | DISMISSED |
| Judgment Author | HON’BLE MR. JUSTICE ALOK MAHRA (Per) |
| Concurring or Dissenting Judges | HON’BLE MR. JUSTICE RAVINDRA MAITHANI (Concurring) |
| Court | High Court of Uttarakhand |
| Bench | Division Bench (Ravindra Maithani, J. and Alok Mahra, J.) |
| Precedent Value | Binding on subordinate courts in Uttarakhand; persuasive elsewhere |
| Overrules / Affirms | Affirms the principle laid down by Gaytri Bajaj v. Jiten Bhalla, (2012) 12 SCC 471 |
| Type of Law | Family/Guardianship Law (Guardians and Wards Act, 1890) |
| Questions of Law | Whether visitation rights to grandparents can be judicially enforced when the minor child is unwilling. |
| Ratio Decidendi |
The welfare and wish of the child is the paramount consideration in custody and visitation matters. Courts should not judicially enforce visitation if the child, especially after counseling, expresses clear reluctance to meet the non-custodial grandparent. Enforcement of such rights against the child’s will is contrary to the child’s welfare and impractical. The judgment relies on the principle affirmed by the Supreme Court in Gaytri Bajaj v. Jiten Bhalla, which prohibits enforcing custody/visitation contrary to the minor’s wishes. |
| Judgments Relied Upon | Gaytri Bajaj v. Jiten Bhalla, (2012) 12 SCC 471 |
| Logic / Jurisprudence / Authorities Relied Upon by the Court |
|
| Facts as Summarised by the Court |
Appeal challenged the dismissal of a guardianship and visitation petition by a grandparent. The minor child (aged five) expressed unwillingness to meet the appellant both during statement recording and counseling sessions. The Family Court’s decision, which relied on these expressions, was affirmed. |
Practical Impact
| Category | Impact |
|---|---|
| Binding On | All subordinate courts in Uttarakhand |
| Persuasive For | Other High Courts, Family Courts across India |
| Follows | Gaytri Bajaj v. Jiten Bhalla (2012) 12 SCC 471 |
What’s New / What Lawyers Should Note
- Reiterates the decisive value of a minor child’s preference, ascertained through counseling and direct statement, in determining visitation and custody rights.
- Affirms that visitation rights, even for grandparents, will not be judicially enforced against the clear wishes of the minor child.
- Emphasizes reliance on counseling reports and direct expressions of the child as a ground for refusing visitation.
- Restates that the child’s welfare remains the paramount consideration over the rights of relatives, including grandparents.
- Lawyers handling guardianship or visitation disputes should present clear evidence of the child’s welfare and wishes, particularly documentation from counseling or psychological assessments.
Summary of Legal Reasoning
- The court noted the minor’s express statements, both during proceedings and in counseling, evidencing reluctance to meet or be with the appellant grandparent.
- It highlighted that in custody and guardianship matters, the child’s welfare and best interests are the supreme consideration.
- Judicial enforcement of visitation/custody contrary to a minor’s clear wish is not permissible; such enforcement would neither be practical nor in the child’s best interests.
- The court cited and followed the Supreme Court judgment in Gaytri Bajaj v. Jiten Bhalla, which holds that courts must not issue orders for custody/visitation when the child is unwilling, as such orders cannot be judicially enforced and would be contrary to welfare.
- The appeal was dismissed, and the existing custody arrangement (with the child’s mother) was maintained.
Arguments by the Parties
Petitioner (Appellant):
- Contended that the Family Court relied solely on the statement of the minor, who was only five years old and allegedly under parental alienation and psychological manipulation.
- In the alternative to custody, requested at least visitation rights to meet the grandchild.
Respondent:
- Asserted that counseling was conducted twice; in both sessions, the child was uncomfortable meeting the appellant.
- The child expressed being well cared for by the mother and expressed no wish to meet the appellant.
- Stressed that the welfare and best interest of the child was paramount in deciding guardianship and visitation.
Factual Background
The appellant, a grandparent, filed a petition under Sections 7 and 10 of the Guardians and Wards Act, 1890, seeking guardianship and visitation rights concerning a minor grandchild, Akshat.
The Family Court dismissed the petition after considering the minor’s statement indicating reluctance to meet the appellant. During counseling sessions before the High Court, the child again expressed discomfort and unwillingness to meet the grandparent, choosing instead to remain with his mother.
In appeal, the appellant pressed for visitation rights as an alternative relief.
Statutory Analysis
The court examined Sections 7 and 10 of the Guardians and Wards Act, 1890, governing applications for guardianship and corresponding powers of the court. The interpretation focused on the principle that the “welfare of the minor” is of paramount importance, and judicial discretion in granting guardianship/visitation must be guided by the minor’s wishes, particularly when expressed clearly and supported by counseling.
Dissenting / Concurring Opinion Summary
No separate dissenting or concurring opinion was authored; both judges concurred, and the main judgment was delivered per Alok Mahra, J.
Procedural Innovations
- The court considered counseling session reports in determining the minor’s wishes and welfare.
- Counseling was organized before the court to assess the child’s willingness regarding visitation.
- No new procedural rules or guidelines were established beyond existing legal framework.
Alert Indicators
- ✔ Precedent Followed – Supreme Court authority was followed and reinforced, not overruled.