Interim injunctions in custody cases.

Byline: Fahad Ahmad Siddiqi Advocate

In guardianship matters, a court has to exercise quasi-parental jurisdiction as the supreme consideration is the welfare of the minor before the Court. To achieve this, courts had unfettered powers. Interim Visitation Schedule is required to be chalked out on such principles. Contesting parents have inherent right to seek visitation to the minor, which is a statutory right of the father, being a Non-Custodial Parent.

Section 5 of the Schedule to the Family Courts Act, 1964 say: 5. Custody of children [and the visitation rights of parents to meet them].

'Visitation' has not been defined in either the Guardian and Wards Act 1890 or in the Family Courts Act 1964, hence we are constrained to resort to its Law Dictionary meaning: 'Visitation means a non-custodial parent's period of access to a child. Visitation right means a non-custodial Parent's, Court-ordered privilege of spending time with a child who is living with another person, usually the custodial parent. A visitation order means an order establishing the visiting rights for a non-custodial parent with his children. Although the non-custodial parent is responsible for the care of the child during visits, visitation differs from custody because non-custodial parent and child do not live together as a family unit. Hence the word 'Parents' is categorically mentioned in Section 5 of the Schedule attached with the Family Courts Act 1964, allows grant of visitation rights to not only the father but also the grandparents of the minor.'

The learned presiding judges of the Appellate Courts have developed a tendency to allow ad interim injunction in Appeals merely on the basis of an affidavit of the Stay Application attached with the Appeal filed against the grant of visitation rights by the Guardian Courts under the mistaken notion that their appellate jurisdiction under Section 14 of the Family Courts Act is a substitute for their CPC civil jurisdiction. This failure to appreciate the difference between general jurisdiction and the quasi-parental jurisdiction by virtue of their office is practically playing havoc with litigants in general and minors in particular.

This relief of 'minimum at home visitation schedule' should be available to all non-custodial parents without discrimination from the very beginning of the trial, at least during the interim stage

Before grant of an ad interim injunction a Learned Appellate Court should appreciate that it is a...