Gujarat High Court: In a civil revision application filed by the petitioner-mother against the rejection of her application filed under Order 7 Rule 11 of Code of Civil Procedure, 1908 (‘CPC’) against the respondent-father’s petition filed under Section 25 of the Guardian and Wards Act, 1890 (‘GWA’), a Single Judge Bench of Sanjeev J. Thaker, JJ., allowed the petition, holding that the custody of the minor child was with the mother by a valid agreement between the parties and since no application was made under Section 26 of the Hindu Marriage Act, 1955 (‘HMA’), no relief could be granted to the father under Section 25 of the GMA.
Background
The parties married in 2011 and had a daughter from the marital relationship. Due to disputes, the couple decided to file for divorce under Section 13(b) of the HMA. In the said divorce petition, both the parties mentioned that the custody of the minor child shall be with the mother.
Considering the affidavits filed by the couple, the child being with the mother, and the consent of the child, the Family Court granted custody of the child to the mother.
Thereafter, the father filed an application under Section 25 of the GWA, praying for the custody of the child. Aggrieved, the mother filed an application under the provisions of Order 7 Rule 11 of the CPC on the ground that the petition was not maintainable under the GWA as the judgment and decree had already been passed under Section 13(b) of the HMA. Eventually, the Family Court rejected the application filed by the mother vide the impugned order.
Aggrieved, the mother filed the present civil revision application.
Analysis
At the outset, the Court remarked that when the parents are in conflict, the child’s well-being should remain of paramount concern, the Court must ensure that the minor child is not treated as an object to be passed back and forth, but rather a person whose stability and security must carefully be protected.
The Court further stated that it is the fundamental right of a child, especially of tender age, to receive the love, care, and protection of both parents. This is not only essential for a child’s emotional and psychological development but is well recognised as a basic human right. The Court must exercise caution in assessing the claim made by each parent, free from any bias and motive, and must focus on the child’s best interest.
The Court added that in custody battles, the child often becomes the unintended victim of their parents’ conflict. In a matter concerning the custody of a minor child, the Court must believe that it is dealing with a sensitive issue in considering the nature of care and affection that a child requires in the growing stages of his/her life. The Court explained that this is why custody orders are always considered inter-locutory orders made in the existing circumstances, and by the nature of such proceedings, custody orders cannot be made rigid and final and are always capable of being moulded or altered, keeping in mind the needs of the child.
The Court noted that while filing the mutual consent divorce petition under Section 13(b) of the HMA, the decision to give custody of the child to the mother was a conscious decision taken by the parties at the relevant stage, and the same could hardly be categorised as a decision taken by force or fraud. Even during the pendency of the said divorce petition, the parties had time to withdraw the settlement during the statutory period. Thus, the father independently relinquished his right to claim the child’s custody. The Court further noted that it was not the father’s case that the mother was not looking after or taking care of the child properly.
Since the father had relinquished his right and the custody had already been granted to the wife, the Court stated that the only alternative for the father was to file a petition under Section 26 of the HMA.
However, the Court stated that it could not be said that the custody had been handed over to the mother permanently. For invoking Section 25 of the GWA, the requirement was that the child leaves or is removed from the custody of the guardian, and even then, an order for the return of the child may be made by the Court only if the Court is further satisfied that such return would be for the welfare of the child. The Court further stated that the detention of a child by one against the wish of his/her guardian may, in law, amount to the removal of the child from the custody of the guardian, within the meaning of Section 25, but in a case where, like the present case, the mother has been entrusted with the child’s custody vide competent Court’s order and the child is all along, since such order, in her custody, retention of the child in such custody granted by the Court cannot, so long the order remains in force, amount to any removal of the child, even if such retention is now against the wish of the natural guardian.
The Court noted that Section 26 of the HMA empowers the Court to pass an interim order concerning custody and to make such provision in the final decree. Even after passing the decree, the Court may, from time to time, revoke, suspend, or vary any order passed in relation to the custody, maintenance, and education of minor children. Therefore, the Court said that if the father felt that there had been some development or subsequent events that might require suspension, alteration, or revocation of the earlier order of custody in favor of the mother, he could file an application under Section 26 of the HMA before the same the Court which made the custody order.
Since the custody was granted after considering the father’s statements before the Family Court, the Court stated that the Section 25 application filed by the father violated the affidavit filed by him before the Family Court. The Court added that there was no justification by the father for approaching the Court for custody after the judgment and decree had been passed by the Family Court.
The Court reiterated that the Court cannot Section 25 of the
Therefore, the Court stated that in such cases, the Court should not exercise summary jurisdiction but instead consider the welfare and interest of the child, the facts of the case, and whether the child is well settled with the custodial parent. The Court also had to consider the events that were not known to the non-custodial parent at the time of filing and delivery of the judgment granting custody in a matrimonial petition.
The Court added that the applicant who intends to file an application under Section 26 of the HMA shall have to give a specific time that the non-custodial parent became aware of the change of circumstances. While deciding the said application, the Court should also consider the period between the non-custodial parent receiving such knowledge and the date of filing the said petition. Any delay in filing the application under Section 26 has to be explained by the non-custodial parent, along with the steps taken by them to request the custodial parent to rectify the issues.
Thereafter, the Court laid down some grounds on which the non-custodial parent could seek an application under Section 26 of the HMA, which are as follows:
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The custodial parent is not looking after the welfare and interest of the child post-separation.
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A change of atmosphere due to re-marriage of the custodial parent i.e., the child is not adjusting with the new parent and does not wish to reside in the new atmosphere. This can be decided depending on the child’s age and maturity.
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The custodial parent does not have custody of the child; the child is given to the grandparents.
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Altered Employment Status — Changes in a custodial parent’s career, such as a job loss, a pay cut, or a shift to a more demanding work schedule.
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Death of the custodial parent.
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There is a custody agreement violation.
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Parental fitness- Newly developed medical issues with the custodial parent.
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The child is facing major health, psychological, and medical issues, changes in school performance, etc.
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Relocation of the custodial parent and it is difficult for the child to stay/study at the new place.
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The custodial parent is involved in legal cases and arrested.
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Child abuse, neglect, abandonment by the custodial parent or by the surrounding custodial parents.
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The child is growing up and expresses the wish to spend time with both parents.
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The custodial parent is not using appropriate funds for the maintenance of the child or is lowering the lifestyle status of the child without any reason.
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Alternation of the work schedule of the custodial parent that is interfering with the schedule of the child.
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The child is being left in the care of helpers/day-care/nannies while the non-custodial parent is in a better position to be available physically for the child.
Thus, the Court held that in the present case, the custody of the minor child was with the mother by a valid agreement between the parties, and since no application was made under Section 26 of the HMA, no relief could be granted to the father under Section 25 of the GMA.
Accordingly, the present application was allowed, the impugned order was quashed, and proceedings pending under Section 25 of the GWA before the Family Court were rejected under Order 7 Rule 11 of the CPC.
[X v. Y, 2025 SCC OnLine Guj 894, decided on 06-03-2025]
Advocates who appeared in this case:
For the applicant: Aditya C Yagnik and Jayani B Shah
For the respondent: Manan Bhatt
