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.

JUDGMENT

Arvind Singh Sangwan, J. - Prayer in this petition is for setting aside the order dated 8.1.2019 passed by the District Judge, Additional Family Court, Karnal vide which an application filed by the petitioner-wife under Order 7 Rule 11 C.P.C. to dismiss the petition filed by the respondent-husband under Section 25 of the Guardianship and Wards Act, 1890 read with Section 6 of the Hindu Minority and Guardian Act, 1956 for claiming the custody of 'A' (name not disclosed) was declined.

2. Brief facts of the case are that the marriage of the petitioner with the respondent was solemnized on 31.10.2010 and out of this wedlock, a male child 'A' was borne on 1.7.2015. Since the marriage between the parties could not pull on, both of them decided to file a petition under Section 28 of the Special Marriage Act, 1954 for granting a decree of divorce by mutual consent. The said petition was filed before the Family Court at Sonepat on 17.10.2017, i.e. just three months after the birth of the male child. In para 5 of this petition, both the parties made a joint declaration that they are living separately from each other since September, 2015 and they are unable to live together as husband and wife any more. Para 7 of this petition reads as under :-

"7. That the parties have now mutually settled and agreed that the little male baby (namely 'A' shall remain in the custody of her mother petitioner No.1, who shall be responsible to look after him in all respect so that he may become a very good citizen of his life. The parties have also settled all their claims, assets and liabilities. The parties have no other further claim whatsoever against each other. The petitioner No.1 undertakes not to claim any kind of istri dhan. The articles and gifts etc. have already been taken back and received by the petitioner No.2 from petitioner No.1."

3. Thereafter, at the stage of first motion, on the same day, i.e. 17.10.2017, a joint statement of the parties was recorded, in which the following averments were made with regard to the custody of the minor child :-

"It has been agreed between the parties that custody of minor child, namely, 'A' shall remain with petitioner No.1.

We further undertake not to file any litigation in future pertaining to this marriage and the matters connected therewith.

Our consent for divorce is free and voluntary. The same has not been given under any force, pressure, fraud, coercion, misrepresentation of undue influence. There is no collusion between us in filling the present petition for divorce by mutual consent.

We have signed the petition for divorce after having been read over and understanding the contents of the same. We undertake to abide by the terms and conditions of settlement, in letter and spirit."

4. Thereafter, on 6.11.2017, at the stage of second motion, the following statement was recorded :-

"Our marriage was solemnized under Section 13 of the Special Marriage Act, 1954 before the Marriage Officer, Delhi on 31.10.2012. After the marriage, we lived together as husband and wife and a male child 'A' was born out from this wedlock. We are residing separately even after filing this petition. There has not been any co-habitation between us since September, 2015. We cannot reside together and our marriage be dissolved as there is no chance of re-union. Everything has been settled between the parties and now nothing shall remain due towards either side and no claim of future maintenance, alimony or any right in property would be raised in either of the parties. We both are bound by our earlier statement dated 17.10.2017.

The marriage may be dissolved today as the mutual consent has not been obtained by force, fraud, undue influence, threat to anyone and this petition has not been presented in collusion with each other."

5. This was followed by a judgment and decree of granting divorce by mutual consent between the parties. In the judgment, it is specifically observed that the male child 'A' is residing with petitioner