The Gujarat High Court allowed a Civil Revision Application filed by the wife concerning the custody of a minor child in a divorce case.
The Gujarat High Court has ruled that, in view of Section 26 of the Hindu Marriage Act, child custody applications filed under Section 25 of the Guardians and Wards Act are not maintainable.
The Court allowed a Civil Revision Application filed by the wife concerning the custody of a minor child in a divorce proceeding. It observed that “it is required to be considered that when the parents are in conflict, the child’s well being should remain paramount concern, the Court must ensure that minor child is not treated as an object to be passed back and forth, but rather a person whose stability and security must carefully be protected.”
A Single Bench of Justice Sanjeev J Thaker held, “In view of section 26 of the Hindu Marriage Act, no application under Section 25 of the Guardians and Wards Act can be maintained. Therefore, if there is any breach of any agreement then only course open to the parties was to approach the Court which pass the decree for divorce as contemplated under the provisions of section 26 of the Hindu Marriage Act.”
Brief Facts
A divorce petition was filed under Section 13(b) of the Hindu Marriage Act, 1955, wherein the wife voluntarily relinquished her rights to maintenance and any claim over the husband’s property. Through mutual consent, the Family Court awarded custody of the minor child to the wife, and the final decree affirmed that the child would remain in her custody.
Subsequently, the husband issued a notice concerning custody and filed an application under Section 25 of the Guardians and Wards Act seeking custody of the child.
In response, the wife moved an application under Order VII Rule 11 of the Civil Procedure Code, arguing that the custody petition was not maintainable due to the earlier consent decree passed under Section 13(b) of the HMA. However, the Family Court rejected her plea.
Court’s Observations
The High Court noted that the Family Court’s order granting custody to the wife had attained finality. It further referred to Section 25 of the Guardians and Wards Act, which deals with a guardian’s entitlement to the custody of a ward.
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“In the present case, there was no justification on the part of the respondent husband to approach the Court for the relief of custody of minor child after the judgment and decree passed in Family Suit,” the Bench remarked.
The Bench further explained, “The court cannot invoke the provision of section 25 of the Guardians and Wards Act solely for the purpose of alteration and revocation of an order of custody made by the competent Court even if such revocation and alteration are required for the minor child’s welfare only alternatively that the petitioner has is to move an application under section 26 of the Hindu Marriage Act.”
The Court held, “In the present case, the custody of the minor child is with the petitioner wife by an agreement between the parties and as the custody of the minor child is with the petitioner wife by a valid agreement between the parties, and therefore, the claim of the respondent husband being the father of the minor child becomes irrelevant and section 26 of the Act contemplates that the Court may, from time to time, revoke, suspend or vary such orders and the provisions previously made thereunder, and therefore, since no application was made under section 26 of the Hindu Marriage Act, no relief can be granted to the respondent husband arising out of an application under section 25 of the Guardians and Wards Act.”
Consequently, the Court ordered, “In view of section 26 of the Hindu Marriage Act, no application under section 25 of the Guardian and Ward Act could be maintainable. Therefore, the present Civil Revision Application is allowed. Order passed by the trial Court is quashed and set aside and in view of the said fact, the proceedings before the trial Court i.e. CMA No.105 of 2021 is rejected under the provision of Order VII Rule 11 of Code of Civil Procedure.”
Accordingly, the High Court allowed the Civil Revision Application.
