IMPORTANT POINT
Court empowered to transfer custody of children from one parent to other if finds just and proper under Section 26 of the Hindu Marriage Act.

Honble Umeshwar Pandey, J.—Heard learned Counsel for the parties.

2. By the impugned orders passed by the Courts below petitioner’s obligation for impleading certain amendment in her written statement was refused.

3. The respondent’s husband filed a divorce petition before the Civil Judge (Sr. Div.) in the year 1998. During the pendency of this petition, the respondent’s husband moved an application for the custody of two sons, who were with their mother. After considering the whole aspect of the matter, the trial Court found that the custody of children should be given to their father and accordingly the application was allowed vide Annexure SA-2 to this petition.

4. The petitioner, however, did not seek any remedy further against that order before the appellate or revisional Court. Subsequently, she has moved an application under Order VI, Rule 17, C.P.C. for amendment to add certain facts about the children, who are presently in custody of their father. The statement of fact proposed to be incorporated in the pleadings is that the children are not being properly looked after by their father and, therefore, the custody of those minor children should be finally given through decree of the Court to their mother-petitioner. This application has been rejected by the Courts below simply on the ground that the petitioner did not seek any remedy against the earlier order dated 17-2-2004 Annexure SA-2 whereby the custody of those children was given to the father.

5. It is contended by the learned Counsel for the petitioner that such custody of children was given only under the provisions of Section 26 of the Hindu Marriage Act, which is an interim provision and Section 26 of Hindu Marriage Act itself provides for its subsequent revocation, suspension or reversion by the Court.

6. From the facts as demonstrated above, it is evident that the custody of children, which was given by the order dated 17-2-2004 (Annexure SA-2). It is relevant to quote the section as below :

"26. Custody of Children.—In any proceeding under this Act, the Court may, from time to time, pass such interim orders and make such provisions in the decree as it may deem just and proper with respect to the custody, maintenance and education of minor children, consistently with their wishes, wherever possible, and may, alter the decree, upon application by petition for the purpose, make from time to time, all such orders and provisions with respect to the custody, maintenance and education of such children as might have been made by such decree or interim orders in case the proceeding for obtaining such decree were still pending, and the Court may also from time to time revoke, suspend or vary any such orders and provisions previously made :

[Provided that the application with respect to the maintenance and education of the minor children, pending the proceeding for obtaining such decree, shall, as far as possible, be disposed of within sixty days from the date of service of notice on the respondent.]

7. From the aforesaid provision, it is more than obvious that it does provide a scope to either of the parties to seek further order in respect of earlier order of custody of children passed by the Court, if circumstances so require provided the case is still pending. Here, the divorce petition is still pending and alteration or revocation of the earlier interim order under Section 26 of Hindu Marriage Act is very much possible. The order is never absolute and binding for all the times to come upon either of the parties or upon the Court. If the Court finds it just and proper that the custody of children may be transferred from one parent to the other, that can be done under the provisions of Section 26 of Hindu Marriage Act itself. The excuse, which has been taken by the Court below for rejecting the prayer of amendment in the pleadings of the petitioner, does not appear to be sound and requires interference.

8. In result, the petition is allowed and the impugned orders