ravi kumar (Service) 11 December 2017

Query under hma

I am an aggrieved wife. My husband filed a petition under section 9 HMA for restitution of conjugal rights. He also filed another petition under section 26 of HMA seeking custody of our son (Age 7+). I had filed my replies to both the petitions raising several objections. Now the Petitioner husband withdrew his Section 9 petition and the Family court approved this withdrawal saying the Respondent wife does not want to go back to her husband because of objections raised by her in her reply. Then I submitted an application that since the husband withdrew his section 9 petition, his other petition under section 26 should also stand automatically dismissed. This is because section 26 is maintainable only when there is any proceeding pending under this Act (HMA) and post his withdrawal of section 9 petition, now there is no proceeding pending under HMA. Now the court wants me to furnish citations / judgements to substantiate my argument of this automatic dismissal of section 26 petition for child custody. Please advise me on this matter and also help me with some appropriate judgements so that his petition under 26 can be dismissed.

Reply Follow

4 Replies

Vijay Raj Mahajan (Advocate) 11 December 2017

The Family Court has powers u/s 26 HMA to make order and provisions in the decree as it may deem just and proper with respect to the custody, maintenance and education of minor children and wherever make from time to time , all such order and provisions, as might have been made such decree or interim order in case the proceedings for obtaining such decree were still pending. What all this means not only during pendency of proceedings but even thereafter order under section 26 HMA can be made by the Family Court.

In your case petition u/s 9 HMA may have been decided but application u/s 26 HMA not yet decided which the Family Court has jurisdiction to decide. The Paramount consideration is the welfare of the child and keeping that in mind the court has to decided the issue of custody of child.

ravi kumar (Service) 11 December 2017

Thank you Sir Sh. Vijay Raj Ji for your valuable inputs. However, may I take this stand that the petition u/s 9 HMA was not decided by the Hon'ble court. The court did not dismiss the petition nor it allowed the petition. It did not issue any instructions / advice to either the Petitioner or the Respondent wife.

Can this be considered as an unusual situation where the Petitioner has himself withdrawn his petition u/s 9 and therefore his section 26 case be automatically considered as dismissed.

Vijay Raj Mahajan (Advocate) 11 December 2017

Petitioner withdrew petition u/s 9 HMA not application u/s 26 HMA, that's the difference, had he withdrew both these things would have come to halt for all purposes, very cleverly he played this trick to withdraw petition u/s 9 and not application u/s 26 HMA.

Sachin (N.A) 11 December 2017

Originally posted by : ravi kumar
	Thank you Sir Sh. Vijay Raj Ji for your valuable inputs. However, may I take this stand that the petition u/s 9 HMA was not decided by the Hon'ble court. The court did not dismiss the petition nor it allowed the petition. It did not issue any instructions / advice to either the Petitioner or the Respondent wife. Can this be considered as an unusual situation where the Petitioner has himself withdrawn his petition u/s 9 and therefore his section 26 case be automatically considered as dismissed.

Court is correct by dismissing the application of maintenance because it was for interim relief this till the pendency of main case but because he withdrew his main case interim application also get dismissed.

However, wife can file case of 125 CrPC for mainenance