Ans. I have produced section12 and 17 of the GWA which reads as follows:
12. Power to make interlocutory order for production of minor and interim protection of person and property
(1) The court may direct that the person, if any, having the custody of the minor, shall produce him or cause him to be produced at such place and time and before such person as it appoints, and may make such order for the temporary custody and protection of the person or property of the minor as it thinks proper.
(2) If the minor is a female who ought not to be compelled to appear in public, the direction under sub-section (1) for her production shall require her to be produced in accordance with the customs and manners of the country.
(3) Nothing in this sections shall authorise-
(a) the court to place a female minor in the temporary custody of a person claiming to be her guardian on the ground of his being her husband, unless she is already in his custody with the consent of her parents, if any, or
(b) any person to whom the temporary custody and protection of the property of a minor is entrusted to dispossess otherwise than by due course of law any person in possession of any of the property.
17. Matters to be considered by the court in appointing guardian
(1) In appointing or declaring the guardian of a minor, the court shall, subject to the provisions of this section, be guided by what, consistently with the law to which the minor is subject, appears in the circumstances to be for the welfare of the minor.
(2) In considering what will be for the welfare of the minor, the court shall have regard to the age, s*x and religion of the minor, the character and capacity of the proposed guardian and his nearness of kin to the minor, the wishes, if any, of a deceased parent, and any existing or previous relations of the proposed guardian with the minor or his property.
(3) If minor is old enough to form an intelligent preference , the court may consider that preference.
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(5) The court shall not appoint or declare any person to be a guardian against his will.
I have also produced section 26 of HMA which read 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 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: 58 [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.]
Section 151 of the CPC is as follows:
151.Saving of inherent powers of Court.-
Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court
After having a plain reading of theses sections, you will understand that, the petition filed by your husband is generally termed as the custody petition for the minor child, where section 12 of GWA allows the Court to direct the party in whose custody the child is.
Section 17 of GWA allows the Court to make opinion about who is the right guardian for the child considering the welfare of the child.
Section 26 of HMA allows the Court to pass orders from time to time as necessary.
And last but not the least section 151 of CPC give inherent power to the Court, to decide on matters to see justice is done to the parties.
