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2025 Supreme(Guj) 2134
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
Sanjeev J.Thaker, J.
Mausami Dilipkumar Bhatt – Applicant
Versus
Maunang Lalitkumar Gor – Respondent
R/Civil Revision Application No. 170 of 2024
Decided On : 06-03-2025
For the Applicant : Aditya C Yagnik, Jayani B Shah
For the Opponent : Mr.Manan Bhatt
When custody is determined via a decree under the Hindu Marriage Act, any subsequent application for modification or revocation must be brought under Section 26 of the Hindu Marriage Act, rendering a concurrent or subsequent petition under Section 25 of the Guardians and Wards Act not maintainable.
Headnote:(A) Hindu Marriage Act, 1955 - Sections 13(b) and 26 - Guardians and Wards Act, 1890 - Section 25 - Code of Civil Procedure, 1908 - Order VII Rule 11 - Child custody orders are interlocutory and subject to modification based on the welfare of the child, which is the paramount consideration. (Paras 15, 20-21).
(B) Maintainability of Proceedings - Where a decree for divorce has been granted under the Hindu Marriage Act and includes provisions for the custody of a minor, a subsequent petition for change or modification of custody must be filed under Section 26 of the Hindu Marriage Act; invoking Section 25 of the Guardians and Wards Act is not maintainable as the appropriate forum is the court which passed the decree. (Paras 27-28).
Facts of the case:
A petition for divorce by mutual consent under Section 13(b) of the Hindu Marriage Act was granted, wherein the custody of the minor child was settled with the mother. Subsequently, the father initiated proceedings under Section 25 of the Guardians and Wards Act seeking custody, which the mother challenged by filing an application under Order VII Rule 11 of the Code of Civil Procedure, asserting that the petition was not maintainable in light of the prior decree. The trial court rejected the application, leading to the current revision application.
Findings of Court:
While acknowledging the importance of the child's welfare and that custody orders are not permanent, the court held that the statutory mechanism provided for the alteration or revocation of custody orders post-divorce is specifically contained in Section 26 of the Hindu Marriage Act. Approaching the court under Section 25 of the Guardians and Wards Act ignores the specific statutory path provided for modifying existing matrimonial decrees.
Issues: Whether an application for custody under Section 25 of the Guardians and Wards Act is maintainable when a binding divorce decree with custody provisions already exists under the Hindu Marriage Act.
Ratio Decidendi: The court determined that because a competent court already exercised jurisdiction under the Hindu Marriage Act to pass a decree including custody, any request to vary or modify that custody must proceed through Section 26 of the same act. Filing under the Guardians and Wards Act is procedurally incorrect and attempts to bypass the existing judicial hierarchy established by the matrimonial law.
Result: Civil Revision Application allowed; the order of the trial court is quashed and set aside, and the application before the trial court is rejected.
| Table of Content |
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| 1. procedural and factual history of a custody dispute established via prior judicial decree. (Para 1 , 2 , 3 , 4 , 5) |
| 2. contention regarding the maintainability of section 25 guardian and wards act petitions post-divorce decree. (Para 6 , 7 , 8 , 9 , 10 , 11 , 12) |
| 3. the principle of 'paramount welfare of the child' and the temporary/interlocutory nature of custody orders. (Para 13 , 14 , 15 , 16 , 17 , 18 , 19 , 20 , 21 , 22) |
| 4. exclusivity of section 26 hma over section 25 gwa for modifying custody orders granted under the hindu marriage act. (Para 23 , 24 , 25 , 26 , 27) |
| 5. final order granting the revision and rejecting the petition under order vii rule 11 due to legal bar. (Para 28 , 29) |
JUDGMENT :
SANJEEV J.THAKER, J.
Children ought not to be victims of the choices adults make for them .”[Wade Horn [Former US Assistant Secretary for Children and Families]
1. The present Civil Revision Application has been filed challenging the order passed below Exhibit-15 by Family Court, Ahmedabad in CMA No.105 of 2021, whereby the application filed by petitioner wife under the provisions of Order VII Rule 11 of the Code of Civil Procedure has been rejected. Aggrieved, the defendant in the said proceedings has filed the present Civil Revision Application.
2. Rule returnable forthwith. Learned advocate Mr. Manan Bhatt waives service of notice of rule on behalf of the respondent. This matter is taken up for final hearing with the consent of the learned advocates for the respective parties.
3. The brief facts of the case are that the parties to the present proceedings had filed petition for divorce under the provisions of Section 13(b) of the Hindu Marriage Act. In the said petition, the parties had mentioned that the marriage of the parties had taken place on 23.01.2011 and from the said marriage a baby girl namely Krishvi was born in the year 2016 and as there were disputes between the parties to the present petition, the petitioner wife went to her parent’s house on 23.07.2017 and both the husband & wife decided to file for divorce, under the provisions of Section 13(b) of the Hindu Marriage Act, and in view of the said settlement, the parties to the petition agreed that both the parties have received their belongings. The petitioner wife had waived all her rights of maintenance and her rights towards any of the properties that belonged to the respondent husband. In the said divorce petition, both the parties have mentioned that the custody of minor child shall be with wife and while deciding the Family Suit No.1876 of 2019, the Family Court has considered the affidavits filed by both the parties to the present petition and after taking into consideration that, the minor child Krishvi is with the petitioner wife and as there was a mutual consent the minor, the Family Court ordered that minor girl shall remain with the petitioner wife. By an order dated 01.02.2020, the Family Court passed final order whereby the custody of the minor child was to remain with the petitioner wife.
4. It is submitted that thereafter, the petitioner husband issued a notice dated 03.11.2020 with respect to the custody of the minor child Krishvi and the said notice was replied by the petitioner wife through her advocate on 10.11.2020, and thereafter, the petitioner husband filed CMA No.105 of 2021 interalia praying for the custody of minor child Krishvi under the provisions of Section 25 of the Guardian and Wards Act.
5. The petitioner wife filed an application under the provisions of Order VII Rule 11 of CPC on the ground that the petition is not maintainable under the Guardian and Wards Act, as the judgment and decree were already passed under Section 13(b) of the Hindu Marriage Act, and therefore, the petitioner husband could not have filed petitioner under section 25 of the Guardina and Wards Act and the Family Court rejected the said application. Hence, the present Civil Revision Application.
SUBMISSIONS OF PETITIONER (DEFENDANT WIFE)
6. Learned advoc
