C.O. 1592 of 2019
Mr. Monish Sen,
Mr. Arijit Dey………………………For the petitioner.
Mr. Nilanjan Bhattacharjee,
Ms. Paramita Roy……………….For the opposite party.
This application under SectionArticle 227 of the Constitution of India impeaches
the order no. 10 dated April 10, 2019 in Judicial Misc. Case No. 43 of 2018
passed by the learned District Judge, Paschim Medinipur.
By the said order, the learned court below, which had already passed a
decree under Section 13(B) of the Hindu Marriage Act (hereafter the Act),
entertained an application under Section 26 of the Act read with Section 25 of
the Guardians and SectionWards Act read with Section 6 of the Hindu Minority and
SectionGuardianship Act, purportedly for modification of the order regarding custody of
the minor child.
The matter had been fixed for further hearing on May 8, 2019 after having
rejected an application challenging the maintainability of the application made by
the petitioner/wife of such application, as referred to above. However, this Court
on considering the submissions made, initially had passed an interim order
staying all further proceedings in the said Judicial Misc. Case no. 43 of 2018 on
June 10, 2019, which had been extended from time to time, which is in force
until November 30, 2019.
The learned senior counsel appearing on behalf of the petitioner has
impeached the order on the ground that after a decree of dissolution of marriage
has been passed, there is no proceeding pending before the learned court below
in which an application under Section 26 can be made. He has drawn my
attention to the language of Section 26 in aid of his argument. According to him,
after passing an order under Section 13(B) of the Act, the court becomes
functuous officio and cannot pass any order which could have the effect of
modifying the decree on an application for modification without a review having
been prayed for. He attempted to rely on a judgment of the Privy Council arising
out of a revisional application in Sri Lanka (then Ceylon); but in view of adoption
of the Constitution of India with effect from November 26, 1949, I am afraid that
the opinions of Their Lordships of Privy council in such a matter, is not
applicable in a matter arising out of the Code of Civil Procedure in India.
The other ground that the learned advocate has taken is that there was no
provision whatsoever in the decree under Section 13(B), which can be sought to
be modified in respect of custody of the minor child.
This has been opposed by the learned advocate appearing for the opposite
party who has submitted that orders of custody of a minor is always of
interlocutory nature and can be revisited by the court which has passed the
decree of divorce. He has relied on the decisions of Supreme Court reported in
AIR 2010 SC 1675 (SectionVikram Vir Vohra -vs- Shalini Bhalla), AIR 2013 SC 102
(SectionGaytri Bajaj -vs- Jiten Bhalla) and a decision of Punjab and Haryana High Court
reported in 2015(2) PLR 15 (Maynak Bhargava -vs- Jyoti Bhargava).
He has also submitted that paragraph 8 of the application for dissolution of
marriage by mutual consent very clearly indicates that certain provisions had
been made in respect of custody of the child and, therefore, since the decree (at
page 17 of the petition) very clearly indicated that the matrimonial suit “be and
the same is hereby allowed on mutual consent in terms of the petition under
Section 13(B) of the Act”, which clearly shows that the decree referred to the
conditions of custody, at least, it was an incorporation by reference. He has also
tried to persuade me that the prime consideration being the welfare of the child,
as has been held by the Supreme Court in various cases, one should look at the
substance of the petition and not the nomenclature or technicalities.
Section 26 of the Act, which both sides have been canvassing, should
perhaps be set out for a better understanding of this case, as was also done by
the learned court below:
“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, alter the decree, upon
application by petition for purpose, make from time to time, all such orders
and provisions with respect to th 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.”
None of the judgments cited by learned advocate for the opposite party
construes Section 26 of the Act. In fact in the judgment in Vikram Vir Vohra
(supra) at paragraph 9 the High Court had held that after the final order is
passed in the original petition of divorce for custody of the minor child, the other
party cannot file any number of fresh petitions ignoring the earlier order passed
by the Court, while considering Section 26 of the Act.
Even though the Hon’ble Supreme Court held that the custody orders were
considered to be of interlocutory nature and by the nature of such proceeding
custody orders cannot be made rigid and final and that the order of custody of
the child and the visitation rights of a party cannot be changed as they are not
reflected in the decree of mutual divorce, is far too hyper-technical to be
considered in a proceeding, I do not find that Section 26 of the Act has been
construed in any of the judgments by Their Lordships.
To my mind, the use of the words “in any proceeding under this Act” with
which Section 26 starts, itself presupposes that a proceeding would be existing
before the court for it to exercise jurisdiction under Section 26 on any application
made in the proceeding. This interpretation is fortified by the proviso that
application for maintenance and education of the minor child pending the
proceeding for obtaining such decree, clearly indicates that this provision is
available at the latest at a stage where the decree is being passed and usually is
to be made before the decree is passed.
Once the decree is passed, Section 26 losses its force.
Thee is no proceeding in Court under the Act of 1955 in which such
application can be made. This is not a question of the order of custody being
interlocutory – it is a case of giving finality to the decree of dissolution of
marriage and the consequences thereof. Where despite the proceeding being
finally disposed of the legislature intended that there can be re-visitation of the
decree, such as the case of alimony, the legislature made it clear by the language
used in the statute.
In such view of the matter, since I have already held that no application
under Section 26 of the Act is maintainable after the decree, the requirement of
deciding whether the court which passed the decree in matrimonial proceeding
can vary the conditions of custody which are impliedly granted by the decree, by
a subsequent application under Section 26, has become redundant.
Therefore, I hold that the learned court below had exercised jurisdiction
not vested in it by entertaining the said application under Section 26 and to that
extent the order impugned cannot stand.
However, the application made by the opposite party is not only under
Section 26; it also refers to some other provisions of law. My decision will
not, therefore, mean that the application now being heard by the learned court
below would fail on the point of jurisdiction since it was made also under the
provisions of Section 25 of the Guardians and SectionWards Act read with Section 6 of
Hindu Minority and SectionGuardianship Act, which will survive the present decision.
The impugned order is, therefore, set aside to the extent mentioned above.
It must be understood that I have not decided on the merits of the application
and the learned court below will be free to decide it in accordance with law as it
thinks fit without, however, considering any part of Section 26 of the Act while
considering the said application. The Judicial Misc. Case no. 43 of 2018 shall be
considered and disposed of as expeditiously as possible, preferably within two
months from communication of this order in the light of above judgment.
The revisional application is disposed of, as aforesaid. There shall be no
order for costs.
(PROTIK PRAKASH BANERJEE, J.)