Child Often Becomes Unintended Victim In Parents' Custody Battle, Court Must Be Cautious In Assessing Claims Made By Either Parent: Gujarat HC

Quoting Former US Assistant Secretary for Children and Families Wade Horn who said "Children ought not to be victims of the choices adults make for them", the Gujarat High Court rejected a father's plea for child custody under Guardians and Wards Act noting that the custody was earlier decided by family court with consent of parties to remain with the mother. 

In doing so the court however also emphasized that often in custody battles the child becomes the unintended victim of their parents conflict, hence keeping in mind the best interest and the needs of the child, the nature of custody orders must be considered as "temporary orders made in the existing circumstances".

However in the present case the court observed that the father did not moved a plea under Section 26 of the HMA which pertains to custody of children, under which Court may, from time to time, revoke, suspend or vary such orders and the provisions previously made thereunder. Since the no application was made under section 26 HMA, no  relief can be granted to the husband in its plea under Section 25(Title of guardian to custody of ward) Guardians and Wards Act, it observed. 

Justice Sanjeev J Thaker in his order emphasized that it is the fundamental right of a child, specially of a tender age to the love, care and protection of both parents. 

"The Court must exercise caution in assessing the claim made by each parents, free from any kind of bias and motive and must focus on the child's best interest. The primary and paramount consideration is always with the child's best interest which encompasses his/her physical and psychological well being. In custody battles, child often becomes the unintended victim of their parents conflict. In the matter relating to the custody of the minor child, the Court must believe that it is dealing with a sensitive issue in considering nature of care and affection that a child requires in the growing stages of his/her life. That is why custody orders are always considered inter-locutory orders and by nature of such proceedings, custody orders cannot be made rigid and final and are always capable of being moulded or altered, keeping in mind the needs of the child, therefore, all orders relating to the custody of the minor child from their nature must be considered to be temporary orders made in the existing circumstances," the court added.

It thereafter said that if the father felt that there had been some development or subsequent events which might require suspension, alteration or revocation of the earlier order of custody in favour of the petitioner wife, the he can move the family court under Section 26 HMA. The court noted that the provision empowers the Court to pass interim order with regard to the custody and also gives the power to make such provision in the final decree.

The court however said that since the husband had made statements in the earlier consent petition of divorce waiving his rights towards the custody of the minor child, the Family Court accepted the submissions of the parties and had passed its order. Thus there was no "justification" on part of respondent husband to approach the Court for custody of minor child after the judgment by family court in the divorce plea, underscoring that that the fundamental right and welfare of the child were of primary consideration. 

It however said, "The court cannot invoke the provision of section 25 of the Guardians and Wards Act solely for the purpose of alteration and revocation of an order of custody made by the competent Court even if such revocation and alteration are required for the minor child's welfare only alternatively that the petitioner has is to move an application under section 26 of the Hindu Marriage Act". 

"Moreover, provisions of section 26 of Hindu Marriage Act is also required to be cautiously, otherwise as one of the party, with a view to get divorce, can agree for divorce and give custody of the minor child of the other spouse, and thereafter, after the child is settled with the other spouse, thereon custodial parent can state that as per section 26 of the Hindu Marriage Act, the non custodial parent seeks to suspend, revoke and alter the custody granted in the divorce petition and thereby jeopardise welfare and interest of the minor child, and therefore, the Court in such cases should not exercise summary jurisdiction as the Court has to look at the welfare and interest of the minor child and the same should be decided by trial after taking into consideration facts of each case and the Court will also have to take into considertion that the child is well settled with the custodial parent," the court added.

Background

The court was hearing a woman's revision plea challenging family court's order which rejected her application under Order VII Rule 11 CPC. The parties had filed a plea for divorce under Section 13(b) of the Hindu Marriage Act (HMA).  The family court in its order said that the custody of the minor child was to remain with the petitioner wife, noting the mutual consent of parties.

Thereafter the husband filed a plea under Section 25 of the Guardian and Wards Act for custody of minor child. The wife moved an application under the Order VII Rule 11 CPC on the ground that the husband's petition is not maintainable under the Guardian and Wards Act, as the judgment and decree were already passed under Section 13(b) of the Hindu Marriage Act. 

Findings

On the facts of the case the court observed that the parties had settled all their disputes while filing a divorce plea under HMA and the Family Court while passing the judgment had also passed an order whereby the custody of the minor child had been handed over to the petitioner wife which had attained finality.

The court also examined the "the voluntary statement, made by the respondent father for giving the custody of the child to the petitioner mother". 

It thus said: "While filing mutual consent petition under Section 13(b) of the Hindu Marriage Act, the decision to give custody of the minor child to petitioner mother, was a conscious decision taken by the parties at the relevant stage and the same can hardly be categorized as a decision taken by force or fraud. Even during the pendency of the said petition under Section 13(B) of Hindu Marriage Act the parties had time to withdraw the settlement during the statutory period. As the said time is given to the parties to rethink on their decision. The parties in the present case agreed that the custody of the minor child will be with the petitioner wife".

The court thus observed that the husband had "independently relinquished his right to the claim of custody" of the child. It was also not the father's contention that the mother was not looking after the child. The court however said it also cannot be said that the custody handed over to the petitioner wife is permanent. 

Noting that the husband had not invoked Section 26 HMA the court said, "In the present case, the custody of the minor child is with the petitioner wife by an agreement between the parties and as the custody of the minor child is with the petitioner wife by a valid agreement between the parties, and therefore, the claim of the respondent husband being the father of the minor child becomes irrelevant and section 26 of the Act contemplates that the Court may, from time to time, revoke, suspend or vary such orders and the provisions previously made thereunder, and therefore, since no application was made under section 26 of the Hindu Marriage Act, no relief can be granted to the respondent husband arising out of an application under section 25 of the Guardians and Wards Act".

Case title: X v/s Y

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Citation: 2025 LiveLaw (Guj) 57