Back
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NEELA GOKHALE, J.
Koushik Jagathalaprathaban – Petitioner
Versus
Karishma Ashokkumar Upadhyay – Respondent
Writ Petition No. 6649 of 2021
Decided On : 04-05-2023
CUSTODY - Hindu Marriage Act - Section 26, Guardianship and Wards Act 1890 - The court discussed the provisions of Section 26 of the Hindu Marriage Act and the Guardianship and Wards Act 1890 in the context of modifying custody arrangements for a minor child. The court emphasized the sensitive nature of custody orders and the need for flexibility to ensure the welfare of the child. The court also referred to the precedent set in Rosy Jacob vs. Jacob A. Chakramakkal, (1973) 1 SCC 840, highlighting the temporary nature of custody orders and the ability to modify them in the best interest of the child.
Fact of the Case:
The Petitioner sought modification of custody arrangements for the minor child following the remarriage of the Respondent. The Family Court rejected the application, citing technical reasons and the need to file a petition under the Guardianship and Wards Act 1890.
Finding of the Court:
The court found that while the relief regarding guardianship may be sought under the Guardianship and Wards Act 1890, the application for modification of custody and access of the child under Section 26 of the Hindu Marriage Act was valid. The court partially set aside the order and directed the Family Court to hear the application for modification of the consent terms relating to custody and access of the minor child.
Issues: The issues revolved around the technical aspects of seeking modification of custody arrangements under the relevant statutes, and the court's authority to consider such modifications in the best interest of the child.
Ratio Decidendi: The court held that while relief regarding guardianship may be sought under the Guardianship and Wards Act 1890, an application under Section 26 of the Hindu Marriage Act for modification of custody arrangements is valid. The court emphasized the temporary nature of custody orders and the ability to modify them in the best interest of the child.
Final Decision: The order of the Family Court was partially set aside, and the Family Court was directed to hear the application for modification of the consent terms relating to custody and access of the minor child.
Key Points: - The court has the authority to modify custody arrangements for minor children under Section 26 of the Hindu Marriage Act, emphasizing the temporary nature of custody orders and the need to prioritize the child’s welfare (!) (!) . - An application under Section 26 of the Hindu Marriage Act for modifying custody and access is valid, while an application for guardianship under the Guardianship and Wards Act, 1890, is treated separately (!) (!) . - The Family Court cannot deny hearing a modification application under Section 26 merely on grounds that guardianship relief requires a separate petition under the Guardianship and Wards Act, 1890 (!) (!) . - Custody arrangements must be flexible and revisable to adapt to changing circumstances, always with the child’s welfare as the primary consideration (!) (!) . - The learned Family Court’s order was partially set aside, directing it to hear the application for modification of consent terms relating to custody and access (!) (!) . - The application was made following the remarriage of the respondent, invoking clauses in the consent terms related to custody, vacations, and access (!) (!) . - The right of access under clause 8(h) includes free access, but it must not interfere with the child’s regular studies or school routine (!) . - The court permitted the parties to adduce additional evidence limited to the modification application (!) . - No order as to costs was made (!) . - The judgment underscores that custody is an interlocutory order and not final, allowing modifications as the child’s needs evolve (!) (!) .
JUDGMENT :
NEELA GOKHALE, J.
1. Rule. None appears for the Respondent despite service. The Respondent has consistently remained absent and has not filed any reply. Ms Aarti Sathe, learned Counsel along with Ms Aasavari Kadam and Ms Madhusmita Saud appears for the Petitioner husband. Rule is made returnable forthwith.
2. Admittedly, the marriage between the parties was dissolved by a decree of divorce by mutual consent, by the learned Family Court at Bandra, Mumbai, on the basis of consent terms dated 3rd July 2017 and 11th December 2017.
3. Clauses 8(a) to (d), (g), (h) (i) and (l) of the consent terms read as thus:
(b) It is mutually agreed between the Petitioners that if either of the Petitioners gets remarried, he/she will handover the custody of son Krishang to the other Petitioner who has not got remarried.
(c) It is mutually agreed between the Petitioners that the school vacation i.e. Summer, Diwali and Christmas vacations of son Krishang shall be equally shared by both the Petitioners until remarriage of either Petitioners.
(d) It is mutually agreed between the Petitioners that they shall be at liberty to take son Krishang out of Mumbai i.e. any place in India during Summer, Diwali and Christmas Vacations. During the vacation outing with son Krishang both the Petitioners agrees and undertakes to this Hon’ble Court that they will make son Krishang available on phone to the non-custodian parent during vacation and shall allow son Krishang to speak/talk.
(g) It is mutually agreed between the Petitioners that none of the Petitioners shall take son Krishang abroad during vacation and or otherwise without the written consent of each other.
(h) It is mutually agreed between the Petitioners that the Petitioner No. 2 mother shall be at liberty to avail free access of son Krishang. It is mutually agreed between the Petitioners and while exercising right of access both the Petitioners shall not exercise the said right by disturbing the regular studies/school of son Krishang.
(i) It is mutually agreed between the Petitioners that they shall make/keep son Krishang available for regular access and shall not create any hurdle for regular/vacation access.
(l) It is mutually agreed between the Petitioners that they both will take care of son Krishang and shall keep himself/herself available with son Krishang during the absence of other Petitioner. In any circumstances son Krishang shall not be neglected.”
4. The physical custody of minor child Krishang is with the Petitioner husband. It is the contention of the Petitioner that his wife has remarried and now residing with her husband.
5. Considering the changed circumstances, the Petitioner husband moved an application before the learned Family Court, under Section 26 of the Hindu Marriage Act, 1955 (“HMA”) read with Order XXXIX Rule 1 of the Code of Civil Procedure 1908 (“CPC”) read with Sections 34 and 37 of the Specific Relief Act 1963 read with Section 151 of the CPC, seeking modification of the consent terms to the extent that the Petitioner father be declared as a sole, permanent and legal custodian and guardian of minor son Krishnag. Prayer (b) to the application also sought modification/variation of clause 8(a) (c) (d) (g) (h) (i) (l) of the consent terms dated 3rd June 2017.
6. The learned Family Court rejected the application.. holding that the same being made under the provisions of Section 151 of the CPC was not maintainable. The Court was of the view that in view of a specific provision for declaration of custody of child under the Guardianship and Wards Act, 1890, resort to Section 151 of CPC cannot be exercised. It is this order that is assailed by the Petitioner in the present writ petition.
7. Heard Ms Sathe, learned Counsel for the Petitioner. Section 26 of the HMA reads thus:
The main legal point established in the judgment is the court's authority to consider and modify custody arrangements for minor children under Section 26 of the Hindu Marriage Act, emphasizing the te....
Competent Court under Special Marriage Act, 1956, even after passing decree of divorce has jurisdiction under Section 38 of Special Marriage Act, 1954 to pass just and proper order with respect to cu....
(1) Custody of minor child – Custody orders are always considered interlocutory orders and by nature of such proceedings, custody orders cannot be made rigid and final and are always capable of being....
The paramount consideration of the child's welfare in custody disputes and the availability of remedies under the Special Marriage Act for violations of custody arrangements.
Custody of child – Grant of custodial visitation right to father- Mother of child (custodial parent) shall not conceal the whereabouts of the child from father.
The welfare of the child is the paramount consideration in custody disputes, and both parents have rights that must be balanced against the child's best interests.
The paramount consideration of the welfare and interests of the child in custody matters, the importance of following prescribed procedures for recording settlements and issuing decrees, and the avai....
Maintenance case - Visiting right - Terms and conditions to exercise visitation rights contained in clause 9 can be varied, altered and modified, but frequency of visitation cannot be less than four ....
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
