The Punjab and Haryana High Court has held that a parent has no independent right to file the petition under Section 25 of the Guardians and Wards Act after Decree of Divorce based on mutual consent was passed under Section 28 of the Special Marriage Act, 1956 and issue of Child Custody was settled by Joint Statement.
The single-judge bench of Justice Arvind Singh Sangwan observed that the only remedy available is in terms of Section 38 of the Special Marriage Act, 1956 which requires that the parent approach the same Family Court which granted the Divorce Decree.
Brief Facts of the Case
The petitioner-wife has filed the present petition seeking setting aside of the Family Court order whereby an application filed by her 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 their child was declined.
In the judgement and decree of granting divorce by mutual consent between the parties, it was specifically observed that the male child was residing with petitioner and the parties are living separately since September, 2015. It was stated in the Joint Statement that it has been agreed between the parties that custody of minor child shall continue to be with the petitioner-wife. The Family Court made the statement binding on the parties while granting Divorce.
The respondent-husband has filed aforesaid petition under Section 25 of the Guardian and Wards Act read with Section 6 of the Hindu Minority and Guardianship Act, 1956, claiming the custody of the minor child on the ground that there was an agreement between the parties dated 13.10.2017, which was notorised at Delhi and it was agreed that respondent will have meeting and visiting rights of child once a week, secondly that he has a right to meet and spent time on the festivals, school functions; etc. and thirdly that in the event of marriage of the mother, the custody will be handed over to the father, if the father so desires.
The petitioner-wife claimed that the document is forged and fabricated. It was also explained in the written statement that on various earlier occasions, when the divorce petition was filed; when the first motion joint statement was recorded; when the second motion joint statement was recorded as well as when the decree of divorce was granted, the respondent-father never relied upon the said agreement though the aforesaid proceedings happened subsequently.
Counsel for the petitioner submitted that since the decree of divorce was granted under Section 28 of the Act by way of mutual consent falling in Chapter VI, therefore, respondent-husband had a remedy to approach the same Court in terms of Section 38 of the Special Marriage Act, 1956 and no independent suit is maintainable. He citd a slew of High Court precedents to buttress his submissions.
In reply, Counsel for the respondent placed reliance upon mutual agreement dated 13.10.2017 to submit that it was signed by the parties and was executed at New Delhi regarding visiting rights of the father with minor child and under Clause 7 and further clause was inserted by writing in hand ‘that in the event of postmarriage of mother, the child will be in custody of his father, if he likes.’ He thus averred that in view of this agreement, once it has come on record that mother had remarried, father has a right to recovery the custody of the minor.
Counsel for the respondent has also argued that the jurisdiction of the Court exercising the petition under Section 25 of the Guardians and Wards Act read with Section 6 of the Hindu Adoptions and Maintenance Act, 1956 is maintainable, independently.
The Court was also informed that the respondent has not been permitted to meet the child and even visiting rights have not been provided.
High Court's Observation
The Court at the outset noted that the respondent-father is working in Dubai as an Orthopaedic Surgeon and visits India periodically. The mother on the other hand is permanently residing in Karnal, where she is working in a hospital and since birth, the child is in the custody of the mother and he has been admitted in school at Karnal and it is the mother who is taking care of the child in all respect and is financially capable to do so.
The Court noted that it is well settled principle of law that for the purpose of deciding an application under Section VII Rule 11 CPC, the contents of the plaint/petition is to be seen, however, in the previous divorce petition filed by both the parents on the basis of the mutual consent under Section 28 of the Special Marriage Act needs to be scrutinized carefully regarding their voluntarily statement of father for giving the custody of the child to the mother and not pleading the agreement dated 13.10.2017 till the time the decree was passed.
It stressed that it is a case of not deciding the rights of the parents but the custody of minor child, therefore, the Court cannot ignore the paramount consideration as held by the Hon’ble Supreme Court in a number of judgments that the welfare of the child should be the paramount consideration, while dealing with the custody of a minor child and, therefore, the circumstances from the date of birth of the child till date needs to be appreciated.
The Court was of the view that the respondent-husband never relied on the said agreement when they settled child custody issue during divorce proceedings.
"Though it is also well settled principle of law that once a party has denied the existence of an agreement, the same may require evidence to prove whether it is a genuine or a forged document, however, in the instant case, once this agreement was never relied upon in the proceedings before the Family Court which calminated into the decree of divorce between the parties by way of mutual consent on the basis of the statement and this agreement was never brought to the notice of the said Court, the trial Court ought to have rejected the same by allowing the application under Order VII Rule 11 CPC."
Rejecting the petition of father filed under Guardians Act, the Court reiterated that in terms of Section 38 of the Special Marriage Act, the respondent-husband has remedy to approach the said Family Court, which has passed the decree of divorce if any terms and condition were violated.
CASE TITLE: Dr. Priyanka Dahiya vs Dr. Manish Raj
CASE DETAILS: CR-993-2019
CORAM: Justice Arvind Singh Sangwan
Read Judgement @LatestLaws.com:
Share this Document :
Picture Source :
