Orders Giving Visitation Right/Temporary Child Custody Cannot Be Passed In A Proceedings For Restitution Of Conjugal Right : Supreme Court

The Supreme court observed that orders giving visitation rights or temporary child custody cannot be passed in a proceedings under Section 9 of the Hindu Marriage Act (Restitution of conjugal rights).

In this case, the husband filed a petition under Section 9 of the Hindu Marriage, Act, 1955, seeking Restitution of Conjugal Rights, against the wife before the Family Court at Puducherry. In these proceedings, he filed an interlocutory application which was purportedly to be a petition under Section 26 of the Act, for grant of custody of the child. Both the petitions were entertained ex­parte and then decreed.

Thereafter, wife approached the Apex Court seeking transfer of these proceedings to Family Court, Bengaluru. The husband contended that the Section 9 Petition sought to be transferred by the wife has already been decided, and therefore the instant Transfer Petition has become infructuous.

"It appears to us that the petitioner (wife) has been denied a fair trial only because she could not leave the child at Bangaluru and visit Puducherry to contest both the petitions.. The respondent (husband) should have filed a separate and independent petition under Section 26 of the Hindu Marriage Act, 1955, instead of securing an Order in the proceedings pending under Section 9 of the Act. The Order dated 03­06­2019 giving visitation rights or temporary custody of the child to the respondent (husband) is, thus, patently illegal. ", the bench of Justices Surya Kant and J K Maheshwari said.

The court therefore invoked its powers under Article 142 of the Constitution of India and set aside the same. The court then directed transfer of these proceedings to Family Court, Bengaluru.

Case details

Priyanka vs Santoshkumar | 2022 LiveLaw (SC) 1021 | Transfer Petition(Civil) 964 of 2021 | 8 December 2022 | Justices Surya Kant and J K Maheshwari

For Petitioner(s) Mr. Shanthakumar Mahale, Adv. Mr. Rajesh Mahale, AOR Mr. A. Sharma, Adv.

For Respondent(s) Mr. T. V. Ratnam, AOR

Headnotes

Hindu Marriage Act, 1955 ; Section 9, 26 - Orders giving visitation rights or temporary child custody cannot be passed in a proceedings under Section 9 of the Hindu Marriage Act for restitution of conjugal rights - A separate and independent petition under Section 26 has to be filed.

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