Custody of child during pendency of dissolution of marriage suit under Hindu marriage act

CUSTODY OF CHILD DURING PENDENCY OF DISSOLUTION OF MARRIAGE SUIT UNDER HINDU MARRIAGE ACT : Karnataka High Court

A petitioner who had applied for dissolution of marriage further approached the lower court to seek custody of the child who is six years old studying in kindergarten.

In the pending petition, the wife filed an application under section 26 of the HMA, 1955 seeking that a direction be issued to the respondent to hand over the custody of the child. The application was objected to by the respondent. The lower court after taking note of rival contentions partly allowed the application.

Although the prayer for handing over of the custody of the child is rejected, the visitation right was granted to the petitioner. The petitioner being aggrieved by the said order moved the High Court of Karnataka.

The submission of the petitioner was that the lower court while admitting the IA,  has gone tangent and in that light has arrived at a wrong conclusion. It is pointed out that though the lower court has accepted the petitioner as the biological mother of the child, has wrongly arrived at the conclusion that the custody cannot be granted due to the delay in filing the application, there being time lapse and there is no familiarity between the mother and the child.

The Learned Council for the petitioner had relied on the decision of the Hon’ble Supreme Court in the case of Roxann Sharma vs. Arun Sharma to contend that when the child is below five years, ordinarily the custody should remain with the mother and even beyond that, if for any reason the custody is to be denied to the mother, there should be specific reasons for doing so to indicate that the possibility is of such a nature the custody can never be granted due to any such disability. In that light, it is contended that, the order is necessarily to be set aside and appropriate direction be issued to grant the custody.

The Learned Council for the respondent apart from seeking to sustain the order of the lower court contented that the consideration which was being made at present was not with regard to custody as prayed under Guardians and Wards Act. In a matrimonial case for dissolution of marriage the application for custody is made; the court below has taken into consideration the welfare of the child, and under that circumstance the court was of the opinion that it would not be in the interest of the child to grant the interim custody at this stage, and in any event, visitation rights has been granted.

TheHon’ble High Court observed and held, if the interest and welfare of the child is also taken into consideration, a sudden change should not be given effect at this stage. It also expressed that visitation rights being granted, appropriate course would be to grant liberty to the petitioner to make an appropriate application before the court below to increase the visitation timings or to seek for overnight visitation rights by way of spending time during the weekends and also to seek for visitation/interim custody during the upcoming vacations to be regulated by the court below. The HC accordingly passed the order with appropriate directions to the lower court.

Smt. ANINDITA KAR vs. SUDIP NATH CHOUDHURY 2016(4) Kar.L.J.110

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