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IN THE HIGH COURT OF MADHYA PRADESH BENCH AT INDORE
Vivek Rusia, J.
Yashwant @ Ankur – Appellant
Versus
Renuka – Respondent
Miscellaneous Petition No. 549 of 2023
Decided On : 30-01-2023
Custody - Hindu Marriage Act - The court granted the petitioner liberty to file a fresh application for visitation right for his daughter, emphasizing that the previous application seeking interim custody had been disposed of and there was no prayer for visitation right in the original application.
Fact of the Case:
The petitioner sought custody of his 4-year-old daughter under Section 26 of the Hindu Marriage Act, claiming that the respondent had not admitted the daughter to school.
Finding of the Court:
The court rejected the petitioner's application for custody, stating that the daughter was studying in school and should reside with her mother. The court also noted that the petitioner had not specifically prayed for visitation rights in the original application.
Issues: Custody of the daughter and visitation rights for the petitioner.
Ratio Decidendi: The court emphasized that since the application for interim custody had been disposed of, the petitioner was granted liberty to file a fresh application specifically for visitation rights.
Final Decision: The petition was disposed of with liberty granted to the petitioner to file a fresh application for visitation rights.
JUDGMENT
Vivek Rusia, J. - Petitioner has filed this present petition under Section 13 of Hindu Marriage Act, 1955 seeking decree of divorce. In the said proceeding, the petitioner filed an application under Section 26 of Hindu Marriage Act, 1955 seeking custody of his daughter aged about 4 years for himself as well as for grand-parents. The main contention of the petitioner was that non-applicant/respondent has not admitted daughter in the school for the studies, therefore, he be given custody for her better future.
2. Vide impugned order dated 20.12.2022 passed in RCS HM/92/2021 by Learned Trial Court has rejected the application on the ground that she is studying in the school and she being a daughter is liable to reside with her mother. Hence this present petition before this Court.
3. Learned counsel for the petitioner submits that looking to the age of the daughter she may continue to with her mother but petitioner being a father must be given visitation right which he claimed in paragraph No.5 of the application and the Learned Court has not passed any order.
4. Although there is a pleading in paragraph No.5 but there is no prayer to that effect in the prayer clause, therefore, the Court has not passed any order. Since the application under Section 26 of the Hindu Marriage Act, 1955 seeking interim custody during the pendency of the petition has been disposed of, therefore, instead of remanding the matter a liberty is hereby granted to the petitioner to file afresh application only for visitation right. If such an application is filed then same be decided in accordance with law.
5. In view of the above, present petition is disposed of with the aforesaid liberty to the petitioner.
Custody of minor child - Nomenclature of the petition under a particular provision does not effect the jurisdiction of the court, if the court has the power to exercise the jurisdiction by applying t....
(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....
Custody of child – Court is required to decide issue of visitation on the basis of what is in best interest of child.
Custody of child – It is welfare and interest of minor child which is of paramount importance.
Visitation rights are critical for the welfare of children in custody disputes, and courts must uphold these rights unless substantial evidence suggests otherwise.
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.
The welfare and interest of the minor child are paramount in custody decisions; a mother should ideally retain custody of a girl child aged 12, considering her developmental needs.
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