No Independent Right To Seek Custody U/S 25 Guardians & Wards Act Where Consent Decree Is Passed U/S 28 Special Marriage Act: P&H High Court

The Punjab and Haryana High Court recently held that in terms of Section 38 of the Special Marriage Act, a father can approach the Family Court which passed the decree of divorce based on mutual consent under Section 28 of the Special Marriage Act, for seeking custody of the child living with the mother.

It added that there is no independent right, after such decree is passed, to move under Section 25 of the Guardianship and Wards Act.

"...in terms of Section 38 of the Special Marriage Act, the respondent-husband has remedy to approach the said Court, which has passed the decree of divorce if any terms and condition were violated and, therefore, in view of the above mentioned two judgments, the petition filed by the respondent-father in terms of under Section 25 of the Guardianship and Wards Act is mis-conceived and is liable to be rejected, being barred by the provisions of Section 38 of the Special Marriage Act.

The bench comprising Justice Arvind Singh Sangwan further noted that it is not a case of deciding the rights of the parents but the custody of minor child, therefore, the paramount consideration of the welfare of the child should not be ignored.

Moreover, 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 dealing with a petition for setting aside the order passed by the Family Court vide which an application filed by the petitioner-wife to dismiss the petition filed by the respondent-husband for claiming the custody of 'A' was declined.

After hearing the counsel for the parties and on going through the record, the court noted 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, the mutual consent divorce petition filed by the parents under Section 28 of the Special Marriage Act needs to be scrutinized carefully regarding voluntarily statement of father giving the custody to the mother and not pleading the agreement.

Though 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 (as there was marriage was performed under the said 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.

Thus, the court provided following undisputed facts on the basis of which this petition deserves to be allowed :-

• The respondent No.1, filed a joint petition with petitioner for dissolution of the marriage by way of a decree of divorce with mutual consent and specifically stated that the male baby 'A' shall remain in custody of his mother.
• When the petition was filed, again father made the statement that the minor child namely 'A' shall remain with the mother.
• Again, when the second motion was recorded, respondent-father acknowledges all the facts, including the date of marriage; birth of minor child 'A'; separation since September, 2015 and specific averment was made that the parties are bound with the earlier statement dated 17.10.2017.
• The alleged agreement came in existence before filing of petition, before the first motion and the second motion statements, but the respondent-father never relied upon the said agreement.
• Even in the judgment and decree passed by the Family Court, Sonepat, a condition was laid that the parties shall be bound by their statement.
• 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.
• Even otherwise in view of the judgment in Rakesh Dua Vs. Mrs. Shoba Dua and Smt. Sibani Banerjee Vs. Tapan Kumar Mukherjee, the respondent-husband has remedy to approach the said Court, which has passed the decree of divorce if any terms and condition were violated.
• It is not case of father that child was forcibly removed from his custody rather it is his own case that the custody given to mother, therefore, petition under Section 25 of the Guardian and Wards Act is not maintainable.
• As the competent Court under the Special Marriage Act, 1956 even after passing the decree of divorce has jurisdiction under Section 38 of the Act to pass just and proper order with respect to the custody, maintenance and education of a minor child.

Accordingly, the court allowed instant petition and set aside the impugned order.

Case Title : Dr. Priyanka Dahiya v. Dr. Manish Raj

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