Hindu Marriage Act – Section 26 – Custody of a Child – Interest of Minor Child – Custody and visitation rights of one of the parents – Any court must remember that it is dealing with a very sensitive issue in considering the nature of care and affection that a child requires in the growing age. It is on account of this reason, the custody orders have been held to be interlocutory orders and they are capable of being altered or moulded or amended keeping in mind the requirement of a child.
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
U. C. Dhyani, J.
Writ Petition No.862 of 2016 (M/S)
Shri Ashwin Chaudhry … Petitioner vs. Smt. Kiran Chaudhry … Respondent
Mr. Prashant Mendiratta, Advocate present for the petitioner.
Mr. Rajendra Dobhal, Senior Advocate assisted by Mr. Bharat Tiwari, Advocate present for the respondent.
1. By means of present writ petition, the petitioner seeks following reliefs, among other:
“(a) Set aside the impugned order dated 28.03.2016 passed by the learned court of Shri Amit Kumar Sirohi, learned Principal Judge, Family Court, Nainital in Divorce Petition titled as ‘Ashwin Chaudhary vs. Kiran Chaudhary’ numbered as HMA No.33/2015.
(b) Direct the respondent to produce the minor child in Nainital and send the minor child, Kushagra Chaudhary, to school to St. Joseph’s College, Nainital.
(c) Grant joint custody and meaningful visitation rights to the petitioner, and;
(d) Restrain the respondent from removing the minor child, Kushagra Chaudhary, from Nainital without the prior written permission of the petitioner.”
2. The petitioner has filed a matrimonial suit under
Section 13 of the Hindu Marriage Act
(hereinafter referred to as the ‘Act’) for obtaining a decree of divorce against the respondent on the ground of adultery. Till December, 2014, child (Kushagra Chaudhary) born out of wedlock of petitioner & respondent was studying with their parents at Nainital, where he was studying in St. Joseph College. In December, 2014, respondent shifted to her parental house at Nainital and, then, in March, 2016 she alongwith the child shifted to Dehradun, where the child was got admitted in Asian School in Class-VII. The child is also present in the Court alongwith her mother. During lunch break, this Court called the child in the chamber.
3. The law is abundantly clear on the point that child’s welfare is a paramount consideration while deciding the issue of custody of a child. On 02.03.2016, the child had an occasion to meet his father on his birthday, which was celebrated at Nainital at the house of respondent’s mother (i.e. maternal grandmother of the child). When the summer vacation started in the Asian School, the petitioner moved an application under Section 26 of the Act for custody of his child. Instead of deciding such an application, the court below postponed the hearing of the same on the ground that it will be decided at the time of final disposal of the matrimonial suit pending adjudication before the said court under Section 13 of the Act.
4. This Court was taken through the judgment impugned, which finds place at Annexure-1 to the writ petition. Learned Judge Family Court, vide order dated 28.03.2016, observed that the application under Section 26 of the Act shall be decided alongwith the matrimonial suit, which order is under challenge in the present writ petition.
5. Section 26 of the Act reads as follows:
26. Custody of children
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 proceedings 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. It says, among other things, that in any proceeding under this Act (read Section 13 of the Hindu Marriage Act in the context of this case), the Court may, from time to time, pass such interim orders with respect to the custody, maintenance and education of minor children, consistently with their wishes. It also provides that such an application shall, as far as possible, be disposed of within 60 days from the date of service of notice on the respondent. In the instant case, application under Section 26 of the Act is pending and the decree in a matrimonial suit under Section 13 of the Act is yet to be passed. It was, therefore, incumbent upon the court below to have decided this matter first and ought not to have kept the matter pending to be decided alongwith the final disposal of the suit. This Court is, therefore, of the view that the court below ought to have decided the application under Section 26 of the Act, which was filed in the pending suit of the petitioner under Section 13 of the Act.
7. The order impugned is, therefore, set aside. A direction is accordingly given to the court below to take up the issue of custody of child moved under Section 26 of the Act at the earliest possible and decide the matter by 28th June, 2016. The parties will appear in person or through their counsel before the court below on 22.06.2016.
8. The next question, which arises for consideration of this Court is – what should be done during the interregnum? Various judgments have been placed before this Court, a reference of which seems to be necessary for the disposal of the present writ petition.
9. Hon’ble Supreme Court in