IMPORTANT POINTS
(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 moulded or altered, keeping in mind needs of child.
(2) Rejection of plaint – In view of Section 26 of Hindu Marriage Act, no application under Section 25 of Guardians and Wards Act can be maintained – Court cannot invoke provision of Section 25of Guardians and Wards Act solely for the purpose of alteration and revocation of an order of custody made by competent Court.

JUDGMENT (ORAL)

“Children ought not to be victims of the choices adults make for them.” Wade Horn [Former US Assistant Secretary for Children and Families].

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 advocate for the petitioner has mainly argued that no cause of action has arisen for the respondent husband to file the present application under Section 25 of the Guardian and Wards Act as the parties have already settled all the disputes by way of mutual consent and the judgment and decree to that effect is already passed in HMP No.1876 of 2019 whereby the Family Court has passed a final order whereby by the said order the custody of the minor Krishvi is with the petitioner wife.

7. Learned advocate for the petitioner wife has also argued that the Family Court could not have rejected the application under Order VII Rule 11 of CPC only on the ground that the respondent husband being biological father has statury right