on 20.11.2003 and one daughter was born of said wedlock on 21.08.2004. It appears that there was matrimonial discord on account of which petitioner started living with her father. Deepak Garg, husband of petitioner filed petition under Section 9 of Hindu Marriage Act for passing the decree of restitution of conjugal right against the petitioner in the court of Civil Judge (S.D) Mathura on 22.04.2008 which was registered as Matrimonial Petition No. 144 of 2008. Petitioner submits that thereafter on account of intervention of relatives and respectable persons the joint petition for dissolution of marriage under Section 13-B of the Hindu Marriage Act was filed which was registered as Marriage Petition No. 193 of 2008( Smt. Payal Garg Vs. Deepak Garg) in the court of Additional District Judge, court no. 9 Mathura on 28.05.2008. In the said case parties to the dispute have filed their respective affidavit on 28.05.2008 in support 2 of their joint petition under Section 13-B of the Hindu Marriage Act. Said joint petition was allowed and marriage in question was dissolved vide judgment and decree dated 12.12.2008. Husband Deepak Garg on 02.01.2009 moved an application terming the same to be under Section 26 of the Hindu Marriage Act for issuing direction to petitioner to permit him and his parents to meet periodically Km. Tulsi and to offer gifts as and when required.
During the pendency of the aforesaid application two other applications were filed supported with affidavits for furnishing therein the details of investment of Rs. five lacs given to minor Tulsi and furnish details of education and health of minor Tulsi. Petitioner objected to to by filing application dated 08.05.2009 by contending therein that application under Section 26 of Hindu Marriage Act was not maintainable and it was motivated application. To the said application so filed husband Deepak Garg filed objection on 12.05.2009 and then on 25.05.2009 Additional District Judge, Mathura rejected the application dated 08.05.2009 by holding that provision of Section 26 of Hindu Marriage Act, are applicable even after dissolution of marriage under Section 13-B of Hindu Marriage Act. Petitioner submits that against the same she preferred appeal and same was got dismissed as withdrawn on 29.06.2009. Petitioner filed reply to the said application filed by respondent-husband contending therein that respondent is not entitled to even see, and what to say to meet Km. Tulsi after consent decree of dissolution of marriage of the parties has been passed on 02.07.2009. To the said application also objections were filed to which rebuttal was also filed and thereafter application was moved by petitioner requesting therein to examine the minor daughter of petitioner in court. To the said application objections were filed and said has also been rejected. At this juncture present writ petition has been filed assailing the validity of aforesaid two orders.
Counter affidavit has been filed and therein it has been stated that application has been filed for conferment of his visitation right in respect of minor Tulsi and it has been stated that petitioner intentionally avoided hearing and disposal of the proceedings. Husband in the past was constrained to file Civil Misc. Writ 20837 of 2009 wherein this Court on 21.04.2009 has directed expeditious disposal of application and in this background it has been stated that writ petition as it has been framed and drawn is liable to be dismissed.
Rejoinder affidavit has been filed and therein averments mentioned in the counter affidavit has been disputed and it has been reiterated that entire amount in question has been invested for fetching better benefits, the applications have been wrongly rejected.
After pleadings inter se parties have been exchanged present writ petition has been taken up for final hearing and disposal with the consent of the parties.
Sri B.N. Agrawal, Advocate assisted by Sri Sanjay Agrawal Advocate contended with vehemence that in the present case in view of specific averments mentioned in paragraph 17 of the affidavit dated 28.05.2008 filed by respondent in proceeding under Section 13B of Hindu Marriage Act and decree having being passed in term of aforesaid averments mentioned in the affidavit, application under Section 26 of Hindu Marriage Act was clearly not maintainable and alternatively if view is taken that said application is maintainable then Additional District Judge was duty bound to take into account the wish of minor by examining her, in this background opinion which has been formed by Additional District Judge that such statement could not be recorded is totally misguided view and not subscribed by any rules applicable in this background order passed by Additional District Judge are liable to be quashed.
Countering said submission Sri Nirvikar Gupta, Advocate 4 representing sole respondent contended language of Section 26 of Hindu Marriage Act on the face of it has got wide connotation and same takes within its folds both the stages i.e. pre decree stage and post decree stage and as such view taken on the said application moved under Section 26 Hindu Marriage Act was maintainable is correct view and same warrants no interference, and here visitation rights have been claimed, as such keeping in view the interest of minor i.e. her welfare and further in the fact of present case minor cannot be forced to be examined and as such view taken is correct view, and this court should refuse to interfere with the same, in the facts of present case.
After respective arguments have been advanced, first question to be adverted to is as to whether application which has been moved under Section 26 of Hindu Marriage Act is maintainable or not.
For ready reference Section 26 of Hindu Marriage Act, 1955 is being quoted below:
Section 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 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 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.
A bare perusal of the aforesaid provision quoted above would to go to show that the jurisdiction to make provision for custody, maintenance and education of minor under the section depends on the following requisites being fulfilled.
(i) The application must be made in any proceedings under the Act and (ii) it must relate to 'minor children' 5 Section 26 itself makes it clear that order contemplated by the section may be made, varied suspended or revoked from time to time and even after the termination of the proceedings by passing of any decree as if the proceedings were still pending. Alteration of decree has also been provided for. The decree contemplated in this section is not only a decree granting relief asked for in the petition, but also includes one dismissing a petition. The court has very wide powers under this section as regards custody of children, its maintenance and education. The primary and paramount consideration for the court in making any order under this section would be the welfare of the minor for which wide discretion has been conferred even before passing of decree and even after passing of decree in question for varying, suspending or revocation of the orders in question from time to time as alteration of decree has also been provided for. Whatever orders are passed are to be passed at both the stages are keeping the interest of children. Application moved under Section 26 of Hindu Marriage Act is thus, maintainable even after proceedings under Section 13B of Hindu Marriage Act have been finalized as in respect of child in question qua whom order of custody has been passed, discretion has been vested with the court to vary, suspend or revoke the said order. The Court exercises supervisory jurisdiction qua the welfare of the child and same does not cease to have jurisdiction even after passing of the decree.
Based on the averments mentioned in the affidavit and decree it has been next contended that husband-respondent is estopped in law from moving such an application under Section 26 of Hindu Marriage Act.
Relevant extract of affidavit mentioned in Paragraph-17 and relevant extract of judgment passed under Section 13B of Hindu Marriage Act are being looked into.
"Paragraph-17 of the Affidavit- यह िि पकिारो िी अवयसि 6 पुती िु० तुलसी उफफ सांची याची संखया १ पायल गगफ िी अििरका मे रह रही है तथा ििवषय मे िी याची संखया १ िे साथ ही रहेगी ििसिी ििी िोई आपिि याची संखया २ दीपि गगफ िो नही होगी तथा चाची संखया २ ििवषय मे ििी िी अवयसि पुती िु० तुलसी उफफ सांची िो अपने पास रखने िे समबनध मे िोई अिधिार केम नही िरेगा।
Relevant extract of the decree- याची संखया २ दीपि गगफ ने अपने शपथपत १२ िी धारा १३ मे िथन ििया है िि पूवफ मे उसने याची संखया १ िे िवरद धारा ९ िहनद ू िववाह अिधिनयम िे अनतगफत दामपतय समबनधो िी पुनफसथापना हेतु एि वैवािहि वाद संखया १४४/०८ पसतुत ििया था िो वतफमान मे नयायालय नवम अितिरक ििला िि मथुरा लिमबत है। वह इस यािचिा मे याची संखया १ िे िवरद लगाये गये सिी आरोप वापस लेता है। उसने इस वैवािहि वाद संखया १४४/०६ िो नयायालय मे पाथफना पत देिर वािपस िर िलया है। याची संखया २ ने अपने- अपने शपथपत मे यह िथन ििया है िि उनिे मधय िोई दरुिि संिध नही । उसने अपने शपथपत मे यह िी िथन ििया हे िि पकिारो िी अवशयसि पुती िु० तुलसी उफफ सांची याची संखया१ पायल गगफ िी अििरका मे रह रही है तथा ििवषय मे ििी िी अपनी पुती िो अपने पास रखने िे संबंध मे िोई अिधिार केम नही िरेगा।
उक समपणफिववेचना व उपलबध साकय िे आधार पर याचीगण िी संयक ु यािचिा अनतगफत धारा १३बी िहनद ू िववाह अिधिनयम सवीिार ििये िाने योगय पायी िाती है।
आदेश याचीगण िी संयकु यािचिा अनतगफत धारा १३ बी िहनद ू िववाह अिधिनयम वासते िववाह िवचछेद आजप िी िाती है तथा याचीगण िे मधय िदनांि २०.११.०३ िो समपन िववाह नयायालय िी आजिप दारा िवचछेिदत ििया िाता है।
िदनांि १२.१२.२००८ वी० िे० अगवाल अपर ििला िल मथुरा िक सं ०९ यह िनणफय आि मेरे दारा हसताकिरत िदनांिित िर खल ु े नयायलय मे सुनाया गया।
िदनांि १२.१२.२००८ The affidavit as well as the extract of the judgement which forms part of the decree, same is clearly in reference to the custody of the minor child to be continued with the petitioner in future also and not to stake any claim in regard to the custody to be ever set up 7 by husband.
In respect of custody, Hon'ble Apex Court time and again has clarified the situation that paramount consideration is welfare of child and same should be kept in mind while passing the order.
Hon'ble Apex Court in the case of Nil Ratan Kundu Vs. Abhijit Kundu reported in 2009 (1) AWC 377 (SC) has taken following view in paragraphs 38, 49,56 73 and 74 are being extracted below:
"38. Section 26 of the Hindu Marriage Act, 1955 provides for custody of children and declares that in any proceeding under the said Act, the Court could make, from time to time, such interim orders as it might deem just and proper with respect to custody, maintenance and education of minor children, consistently with their wishes, wherever possible.
49. Considering the facts and circumstances and bearing in mind the case pending against the father and rejecting his prayer for custody and granting custody to the maternal uncle, the Court stated;
"After talking to the children, and assessing their state of mind, we are of the view that it would not be in the interest and welfare of the children to hand over their custody to their father Pradipkumar. We are conscious that the father, being a natural guardian, has a preferential right to the custody of his minor children but keeping in view the facts and circumstances of this case and the wishes of the children, who according to us are intelligent enough to understand their well-being, we are not inclined to hand over the custody of Vishal and Rikta to their father at this stage".
56. In our judgment, the law relating to custody of a child is fairly well-settled and it is this. In deciding a difficult and complex question as to custody of minor, a Court of law should keep in mind relevant statutes and the rights flowing therefrom. But such cases cannot be decided solely by interpreting legal provisions. It is a humane problem and is required to be solved with human touch. A Court while dealing with custody cases, is neither bound by statutes nor by strict rules of evidence or procedure nor by precedents. In selecting proper guardian of a minor, the paramount consideration should be the welfare and well-being of the child. In selecting a guardian, the Court is exercising parens patriae jurisdiction and is expected, nay bound, to give due weight to a child's ordinary comfort, contentment, 8 health, education, intellectual development and favourable surroundings. But over and above physical comforts, moral and ethical values cannot be ignored. They are equally, or we may say, even more important, essential and indispensable considerations. If the minor is old enough to form an intelligent preference or judgment, the Court must consider such preference as well, though the final decision should rest with the Court as to what is conducive to the welfare of the minor.
Orders of Courts below not in consonance with law
73. As already noted, Antariksh was aged six years when the trial Court decided the matter. He was, however, not called by the Court with a view to ascertain his wishes as to with whom he wanted to stay. The reason given by the trial Court was that none of the parties asked for such examination by the Court.
74. In our considered opinion, the Court was not right. Apart from statutory provision in the form of sub-section (3) of Section 17 of 1890 Act, such examination also helps the Court in performing onerous duty, in exercising discretionary jurisdiction and in deciding delicate issue of custody of a tender-aged child. Moreover, the final decision rests with the Court which is bound to consider all questions and to make an appropriate order keeping in view the welfare of the child. Normally, therefore, in custody cases, wishes of the minor should be ascertained by the Court before deciding as to whom custody should be given.
Hon'ble Apex Court in the case of Anjali Kapoor Vs. Rajiv Baijal reported in 2009 (3) AWC 2679 has taken following view in paragraphs 18 and 22 is being extracted below:
18)Bearing these factors in mind, we proceed to consider as to who is fit and proper to be the guardian of the minor child Anagh in the facts and circumstances of this case. In the present case, the appellant is taking care of Anagh, since her birth when she had to go through intensive care in the hospital till today. The photographs produced by her along with the petition, which is not disputed by the other side would clearly demonstrate, the amount of care, affection and the love that the grandmother has for the child having lost only daughter in a tragic circumstances. She wants to see her daughter's image in her grand child. She has bestowed her attention throughout for the welfare of reminiscent of her only daughter, that is the minor child which is being dragged 9 from one end to another on the so called perception of judicial precedents and the language employed by the legislatures on the right of natural guardian 9 for the custody of minor child. 19)Anagh is staying with the appellant's family and is also studying in one of the reputed school in Indore. It must be stated that the appellant has taken proper care and attention in upbringing of the child, which is one of the important factor to be considered for the welfare of the child. Anagh is with the appellant right from her childhood which has resulted into a strong emotional bonding between the two and the appellant being a woman herself can very well understand the needs of the child. It also appears that appellant, even after her husband's demise, is financially sound as she runsher own independent business.
20)On the other hand, considering the evidence of the respondent, it seems to us that since he has borrowed money from several persons and since he has a meager income he may not be in a position to give comfortable living for the child . In spite of notices issued to him, he has not appeared before the Court personally or through his counsel which shows his lack of concern in the matter. It is also brought to our notice that he has got married for the second time and has a child too, and the minor child might have to be in the care of step mother, specially the father being a businessman, he has to be out of the house frequently on account of his business.
21)Ordinarily, under the Guardian and Wards Act, the natural guardians of the child have the right to the custody of the child, but that right is not absolute and the Courts are expected to give paramount consideration to the welfare of the minor child. The child has remained with the appellant/grandmother for a long time and is growing up well in an atmosphere which is conducive to its growth. It may not be proper at this stage for diverting the environment to which the child is used to. Therefore, it is desirable to allow the appellant to retain the custody of the child.
22)In view of the above discussion, we allow this appeal and set aside the impugned order. We permit the appellant to have the custody of the child till she attains the age of majority. No order as to costs."
All the cases which have been referred to above are in respect of custody of child in question. In the present case undisputed position is that in respect of child's custody compromise decree has been passed and petitioner is one of the custodian of the child in question as per the averments mentioned in the affidavit and decree has also been passed in term of the aforesaid affidavit.
Can even in such a situation application which has been moved could be moved and said application is maintainable or not is essentially question to be answered in the light that husband is estopped from making any request, in the said regard.
In the light of the averments mentioned in the affidavit and the decree passed, certainly the husband of petitioner cannot ask for custody of the child in routine manner but in case husband satisfies the court that the welfare of the child being seriously prejudiced the Court can always make enquires and pass orders, keeping in view the paramount consideration i.e. the interest and welfare of the child, and pass appropriate orders on the same. Whenever issue of welfare of child is involved, principle of estoppal is not at all attracted, as issue of welfare is to be decided keeping in view overall situation, which would be conducive to the welfare of child. Child in question is not at all signatory to the said compromise, and qua his interest, the Court has supervisory role to play, to ensure welfare of the minor child.
Right of visitation has not at all been defined under Hindu Marriage Act but said right has been recognized by judicial pronouncement while balancing the equity between the parents i.e. husband and wife or any other third party. Visitation right is ante- thesis of custody inasmuch as one who has got custody, he/she will not require visitation right and one who has not got custody then he/she can certainly pray for visitation right to meet near and dear one. Said right has been recognized by Hon'ble Apex Court in the case of Kumar V. Jahgirhar Vs. Chetana K Ramatheertha reported in 2001 AIR (SC) 2179 and in the case of Shila B Das Vs. P.R. Sugasree reported 2006 AIR Jharr-277 .
In the said case where custody has been granted to one then visitation right has been granted to other. Said right has been conferred keeping in view human angle attached to the problem.
Hon'ble Apex Court made it clear that it is human problem and same required to be solved with human approach.
In 59 Am Jur, dealing with subject ' Parent and Child' at pages 35, 36 have dealt with right of visitation. It has been mentioned that right of visitation derives from the right of custody and is controlled by the some principles i.e. the welfare of the child is the relevant consideration. A parent denied custody does not thereby lose his natural right to visit his children, the said right may be denied if the best interest of child so demands. Visitation right are allowed to ordinarily to non-custodial parent.
In the present case merely because custody has been handed over to mother of child with clear cut understanding that custody will not be claimed, can it be said then even visitation right has been surrendered ? Answer would be "No", for the simple reason that father has got every right to satisfy the court by virtue of being father that at least his visitation right be preserved so that he can meet the child and shower his love and affection to her which would be for the welfare of the child.
Here in the present case it has been stated that husband and his old parent who have lone grand daughter intend to have visitation right to shower their love and affection. Said right can be very well considered in the proceedings undertaken under Section 26 of Hindu Marriage Act which comes before the concerned court to pass such incidental order while giving custody to one and conferring visitation right to other.
Even at the point of time when issue of visitation right is being considered, the welfare of the child has to be kept in mind, and same can be denied also if the best interest of child so demands.
Totality of circumstances has to be considered by the court as to whether such an arrangement can be made keeping in view the welfare of the child. If the welfare of child warrants and parties are 12 not willing to go to each others place then attempt shall be made by the court to see that there are some common relatives/friends at whose place meeting can be arranged and in case name of such common relatives/friends are not suggested to the court then the court can proceed to ensure visitation right, by making arrangement for meeting in chambers of the court ceased of the matter. In deciding such question, wishes of the child, wishes of the parties of the matrimonial dispute and other incumbent who come forward claiming their visitation right be also considered but paramount consideration resting with the court should be welfare of child. Plea of estoppel is not at all attracted in the fact of the present case, looking into the nature of proceedings, application in question has rightly been held to be maintainable and same has to be decided by the concerned court on merit with human angle keeping in view the statutory provision also. Consent decree as mentioned in Parayaa Allaya Hitamalan vs. Sri Parya 2008 (1) ARC has no application as already discussed above.
Much issue has been sought to be raised in the present case that concerned court has totally erred in law in refusing to examine the minor child.
At this juncture the Hindu Marriage and Divorce Rules 1956 are being looked into.
Said rules have been framed by this Court in exercise of the powers conferred by Sections 14 and 21 of the Hindu Marriage Act, 1955 enforceable from 20.10.1956. Rule 1 of the aforesaid Rules deals with short title and commencement; Rule 2 deals with definition; Rule 3 deals with petitions; Rule 4 deals with forms of petitions; Rule 5 deals with contents of petitions; Rule 6 deals with necessary parties; Rule 7 deals with verification of petitions; Rule 8 deals with application for leave under Section 14 of the Act; Rule 9 deals with service of order granting leave and procedure after 13 service; Rule 10 deals with notices; Rule 11 deals with service of petition; Rule 12 deals with written statements or answer to petitions by respondents; Rule 13 deals with intervener's petition; Rule 14 deals with answer; Rule 15 deals with mode of taking evidence; Rule 16 deals with costs and Rule 17 which is relevant is being quoted below:
Rule 17. Application for alimony and maintenance:- (a) Every application for any of the reliefs mentioned in sections 24, 25 (1) and 26 of the Act, shall be supported by an affidavit stating the average monthly incomes of the petitioner and the respondent, the sources of the incomes, particulars of the other movable and immovable property owned by them and the names and ages of the persons dependent on the petitioner and the respondent.
(b) Every application for either of the reliefs mentioned in sub-sections (2) and (3) of Section 25 of the Act shall be accompanied by a certified copy of the order passed under-section (1) and supported by an affidavit. It may be disposed of by the Court in its discretion on affidavits after giving an opportunity to the party affected to be heard."
A bare perusal of the Rule 17 of the Rules would go to show that every application for any of the reliefs mentioned in sections 24, 25 (1) and 26 of the Act, has to be supported by an affidavit stating the average monthly income of the petitioner and the respondent, the sources of the income, particulars of the other movable and immovable property owned by them and the names and ages of the persons dependent on the petitioner and the respondent. Clause (b) of Rule 17 deals with that every application for either of the reliefs mentioned in sub-sections (2) and (3) of Section 25 of the Act shall be accompanied by a certified copy of the order passed under-section (1) and supported by an affidavit. It is provided that same may be disposed of by the Court in its discretion on affidavits after giving an opportunity to the party affected to be heard.
Proceedings under Sections 24, 25 and 26 are summary in nature and said proceedings has been left to the discretion of the court to decide the same on affidavits and only obligation of the 14 court is to provide opportunity of hearing to the parties affected. For doing justice inter se parties it is wisdom of the court to examine any one who comes with rightful claim and whose statement is must for doing complete justice in respect of the parties.
Nature of proceedings has also to be kept in mind. Section 24 is in reference to husband and wife both wherein for support, on account of lack of insufficient income qua either of the two, and for contesting the litigation, directives can be given to respondent to pay petitioner having regard to petitioners own income and income of the respondent. Provision of Section 24 thus, provides for support to be given by the earning spouse in favour of non-earning spouse. Section 25 deals with permanent alimony and maintenance. Sub-Section (1) of Section 25 authorizes the court having jurisdiction in the matter, at both the stages i.e. at pre decree stage and post decree stage to award for maintenance and support, gross sum or such monthly or periodical sum, not exceeding the life of applicant; having regard to the respondents own income and other property, if any and the income and other property of the claimant. The conduct of parties and other circumstances of case, which seems just to Court. Court is even authorized to create charge on immovable property of respondent. Sub-section (2) of Section 25 authorizes the Court to vary/rescind/modify the order passed under sub-section (1) of Section 25, if court is satisfied that there is change in circumstances, and said order can be passed at the instance of either of the parties. Sub-section (3) of Section 25 gives authority to the Court to vary/modify/rescind the order passed under the said section, when Court is satisfied that the party in whose favour order has been passed has remarried or has not maintained the sexual status i.e. that wife has not remained chaste and husband has had sexual intercourse with any woman outside wedlock; in such manner as the court deems fit. Nature of proceedings under Section 26 has already 15 been discussed at great length in preceding part of this judgment and therein paramount consideration is the welfare of the child and wishes of child at each stage of proceeding has to be kept in mind, whether it is pre decree or post decree stage.
Rule 17 does not lay any fetter on the court as to in what way and manner it is to be decided rather entire discretion is on the court to see as to in what way and manner proceeding are to be decided. Said provisions are purely directory in nature. In proceedings under Section 26, which is inclusive of incidental proceeding of visitation right, concerned court is not at all debarred from calling minor child for knowing the wishes of the minor child rather court should ascertain the wishes of child, in such matters. Court concerned shall decide the application of visitation right independently with open mind without keeping itself under any fetters.
Consequently, present writ petition is disposed of with a direction that concerned court shall decide the said application with open mind keeping in view the paramount consideration i.e. the welfare of the child preferably within two months from the date of presentation of certified copy of this order.
No order as to cost.
Dated 18th January, 2010 Dhruv