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Visitation Rights of Fathers in India: Legal Provisions & Challenges

Lawkagyan March 06, 2025

 Visitation Rights of Fathers in India: Legal Provisions, Challenges, and Solutions

A child's relationship with both parents is crucial for emotional and psychological development. However, in cases of divorce, separation, or child custody disputes, fathers in India often struggle to maintain a meaningful connection with their children. While mothers are typically granted primary custody, fathers are provided with visitation rights, allowing them scheduled access to their children.


Despite legal provisions, many fathers face difficulties in enforcing these rights due to biased custody decisions, legal delays, and societal perceptions. This article explores the legal framework, challenges, and solutions for ensuring fair visitation rights for fathers in India.

Understanding Visitation Rights in India

Visitation rights refer to the legal right of a non-custodial parent (usually the father) to meet and spend time with their child after separation or divorce. These rights are determined based on the child’s best interests and aim to ensure the child maintains a bond with both parents.

Difference Between Custody and Visitation Rights

  • Custody: The right to make decisions regarding the child’s education, healthcare, and upbringing.
  • Visitation: The right to meet and spend time with the child on specific days, weekends, or holidays.

Legal Provisions Governing Visitation Rights of Fathers

Visitation rights in India are primarily governed by the following laws:

1. Hindu Minority and Guardianship Act, 1956 (HMGA)

  • Under Section 6, the father is the natural guardian of a minor child, but custody is generally given to the mother for children under five years old.
  • Fathers can petition for visitation rights if they are denied access.

2. Guardians and Wards Act, 1890 (GWA)

  • Under Section 17, courts decide custody and visitation based on the child’s welfare rather than parental preference.
  • Fathers can apply for scheduled visitation if the mother has sole custody.

3. The Hindu Marriage Act, 1955 (HMA)

  • Under Section 26, courts can grant, modify, or enforce visitation rights in divorce cases.
  • Fathers can approach the court if visitation rights are being denied or restricted.

4. Special Marriage Act, 1954 (For Interfaith Marriages)

  • Similar to the HMA, this law allows fathers to seek visitation rights in case of divorce or separation.

5. The Family Courts Act, 1984

  • Allows fathers to file petitions in family courts for enforcing visitation rights.
  • Fast-track court mechanisms are available for urgent cases.

Challenges Fathers Face in Exercising Visitation Rights

Despite legal provisions, fathers often face practical challenges in enforcing their visitation rights.

1. Custody Bias in Favor of Mothers

  • Courts generally award primary custody to mothers, especially if the child is below five years old.
  • Fathers often receive limited visitation, sometimes only a few hours a month.

2. Parental Alienation and Denial of Access

  • Some custodial mothers influence children against the father (known as Parental Alienation Syndrome).
  • Fathers face deliberate denial of visitation despite court orders.

3. Legal Delays and Ineffective Enforcement

  • Even after securing visitation orders, legal delays prevent timely enforcement.
  • Contempt proceedings against the mother for violating visitation orders can take years to resolve.

4. Social Stigma Against Fathers Seeking Custody

  • Fathers seeking custody or more visitation are often perceived as less nurturing.
  • Society assumes that mothers are naturally better caregivers, even when fathers are equally capable.

How Courts Determine Visitation Rights

Family courts decide visitation rights based on the best interests of the child, considering factors such as:

Ø  Age and health of the child – Infants and young children are usually placed with the mother, with limited visitation for the father.

Ø  Father’s financial stability and conduct – If the father can provide a stable environment, he may receive extended visitation.

Ø   Child’s preference (for older children) – If the child is mature enough, courts may consider their preference.

Ø   Parental cooperation – If the custodial parent (mother) refuses to cooperate, courts may grant extended visitation or even modify custody orders.


Types of Visitation Rights Granted to Fathers

Depending on the case, courts may grant different types of visitation:

1. Fixed Visitation

  • The father is allowed to meet the child at specific times (e.g., weekends, birthdays, school vacations).

2. Supervised Visitation

  • In cases where the mother alleges abuse, neglect, or domestic violence, visitation may be supervised by a third party.

3. Overnight or Extended Visitation

  • If the father demonstrates good parenting capability, courts may allow overnight stays or longer vacations with the child.

4. Virtual Visitation (Video Calls and Online Meetings)

  • In long-distance cases, courts may order virtual interactions via video calls, emails, or messaging apps.

Recent Court Judgments Favoring Fathers’ Visitation Rights

Case Study 1: Delhi High Court Ruling (2022)

a)      A father filed a case against his ex-wife for denying court-ordered visitation. The Delhi High Court ruled that:

b)       Denial of visitation is a violation of parental rights.

c)        Courts can impose fines or modify custody if the custodial parent refuses visitation.

Case Study 2: Bombay High Court (2021) – Virtual Visitation Rights

a)      Due to COVID-19 travel restrictions, a father from the US was unable to visit his child in India. The court ordered:

b)       Mandatory video calls between the father and child every weekend.

c)        Physical visitation to resume post-pandemic.

How Fathers Can Enforce Their Visitation Rights

Fathers who face denial of access can take the following legal steps:

Ø  File a petition under the Guardians and Wards Act for visitation enforcement.

Ø  Approach the Family Court for contempt of court if the mother violates visitation orders.

Ø   Request modification of custody arrangements if parental alienation is proven.


Need for Reform: Ensuring Equal Parental Rights

🔹 Presumption of Shared Parenting:

  • Courts should prioritize shared parenting instead of automatically awarding custody to mothers.

🔹 Faster Legal Processes for Visitation Cases:

  • Family courts should resolve visitation disputes within months, not years.

🔹 Stronger Penalties for Denying Court-Ordered Visitation:

  • Strict fines or custody modifications should be imposed on custodial parents who violate orders.

🔹 Greater Recognition of Fathers as Equal Parents:

  • Society must acknowledge that fathers play an equally important role in a child’s life.

Conclusion

Visitation rights are essential for maintaining a strong father- child bond, but legal and societal biases often restrict fathers from meaningful involvement. While Indian laws allow fathers to seek visitation, delays, enforcement issues, and social stigma make the process difficult.

By advocating for equal parenting rights, improving legal enforcement, and changing societal perceptions, India can ensure that children benefit from the love and guidance of both parents, regardless of custody arrangements.

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