Madhya Pradesh High Court
Smt. Namita vs Ravi Tank on 7 March, 2025
Author: Prem Narayan Singh
Bench: Prem Narayan Singh
NEUTRAL CITATION NO. 2025:MPHC-IND:6125
1 CR-1046-2024
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE PREM NARAYAN SINGH
CIVIL REVISION No. 1046 of 2024
SMT. NAMITA AND OTHERS
Versus
RAVI TANK
Appearance:
Shri Hitesh Sharma - advocate for the petitioners.
Shri Tarun Pagare, learned Panel Lawyer for the State.
Shri Yashpal Singh Sisodiya, learned counsel for the respondent [CAVEAT].
Heard on : 19.02.2025
Pronounced on : 07.03.2025
ORDER
This revision has been filed by the petitioners under Section 115 of the
CPC against the order dated 19.9.2024, passed in MJCGW No. 75/2023
passed by Presiding Officer Family Court, Indore.
2. Learned counsel for the petitioners submitted that the respondent
has filed application under Order 7 Rule 11 of CPC on the ground that the
divorce decree passed in the year 2017 by the learned Family Court and as
per terms and conditions the custody of the petitioner No. 2 was handed over
to petitioner No. 1. When the divorce decree was allowed with that
condition, the Family Court is not entitled to entertain an application under
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Section 11 of Guardian and Wards Act. The learned Family Court has erred
in holding that under Section 26 of Hindu Marriage Act, variance with
respect of the custody of child can be done by the Court in changed
circumstances. It is also important that there is no change in circumstances
and the petitioner No.1 is in the better position than the respondent for
maintaining the child. Finding of learned Trial Court that the petition cannot
be decided without the evidence is also incorrect in the eyes of law. In
support of his arguments, he placed reliance in the judgment passed by the
High Court of Jammu and Kashmir in Aisha Vs. Bashir Ahmad Haji , dated
5.9.1986 (First Appeal No. 39/1986) and also in the judgment passed by this
High Court in Municipal Council Vs. Brajkishor Agrawal , dated 3.10.2024
(Second Appeal No. 525/2015).
3 In reply, learned counsel for the respondent by supporting the
impugned order submitted that the learned Family Court, after appreciation
of all the evidence and documents on record, has rightly given its finding,
hence, it does not warrant any interference.In support of this arguments, he
placed reliance in the judgment passed by the Hon'ble Apex Court in the case
of Rosy Jacob Vs. jacob A. Chakramakkal reported as 1973 AIR SC 2090 .
4. Having heard both the parties, I have gone through the impugned
order as well as the respective law placed by the parties.
5 At the outset, Section 26 of the Hindu Marriage Act is required to
be quote here:-
26. Custody of children.-
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"...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,
after 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...."
6. Nevertheless, there is a divorce decree between both the
parties has been passed on consent and custody of petitioner No. 2
was handed over to petitioner No. 1. However, in view of that
grounds in changed circumstances, the respondent cannot be
debarred to file a petition for custody of his child. As per
aforesaid provision, even after the decree of divorce, the learned
Trial Court may pass the order upon the application of parties
with respect to the custody, maintenance and education of child.
7. So far as the law laid down in the case of Aisha (supra), it
has different aspect from the present case. So far as the law laid
down in the case of Municipal Council (supra) is concerned, it is
not related to the family Court matter therefore, it cannot be
applied with the fact of this case. On this aspect, para No. 20 of
the judgment passed in Rosy Jacob(supra) is condign to quote
here:-
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" 20. The appellant's argument based on estoppel and on the orders
made by the court under the Indian Divorce Act with respect to the
custody of the children did not appeal to us. All orders relating to the
custody of the minor wards from their very nature must be considered
to be temporary orders made in the existing circumstances. With the
changed conditions and Circumstances, including the passage of time,
the Court is entitled to vary such orders if such variation is considered
to be in the interest of the welfare of the wards. It is unnecessary to
refer to some of the decided cases relating to estoppel based, on
consent decrees. cited at the bar. Orders relating to custody of wards
even when based on consent are liable to be varied by the Court, if the
welfare of the wards demands variation."
8. The aforesaid law has recently been endorsed by the
Hon'ble Apex Court in the case of Tejaswini Gaud Vs. Shkhar
Jagdish Prasad Tewari reported as 2019 (7) SCC 42 and Goutam
Kumar Das Vs. NCT of Delhi and Others. reported as 2024 Law
Suit (SC) 691.
9. In view of above deliberation and settled preposition of
law, the impugned order passed by learned Family Court relying
upon the Section 26 of Hindu Marriage Act is infallible in the eyes
of law. The said objections cannot be raised under the provisions
of Order 7 Rule 11 of CPC. Hence, the order of learned Family
Court does not warrant any interference.
10. Before parting, it is clarified that the petitioner has every
right to raise all objections regarding guardianship of the child
under the appropriate provisions of law before the learned Family
Court in her respective pleadings, evidence and arguments and the
learned Family Court is also at liberty to decide it in accordance
with law without being influenced by the order of this Court.
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11.. Accordingly, the revision petition stands dismissed.
(PREM NARAYAN SINGH)
JUDGE
VD
