“Custody Settled in Divorce Cannot Be Reopened Under Guardians and Wards Act”: Gujarat High Court Allows Civil Revision, Says “Section 26 of Hindu Marriage Act Is the Only Remedy”
Isabella Mariam
The Gujarat High Court, Single Bench of Justice Sanjeev J. Thaker, allowed a civil revision application and quashed the trial court’s order rejecting an application filed under Order VII Rule 11 of the Code of Civil Procedure. The High Court held that an application for custody under Section 25 of the Guardians and Wards Act was not maintainable when custody of the minor had already been granted under a consent decree passed in matrimonial proceedings. It was directed that the pending custody proceedings before the trial court be rejected, as such relief could only be sought under Section 26 of the Hindu Marriage Act.
The matter before the High Court arose from proceedings initiated under Section 25 of the Guardians and Wards Act for custody of a minor child. The custody had earlier been determined through a decree of divorce granted under Section 13(b) of the Hindu Marriage Act, in which both parties had agreed to the custody arrangement. The Family Court, by judgment in Family Suit No. 1876 of 2019, had accepted the mutual consent terms, including custody of the minor child with one parent. The decree was passed after consideration of affidavits and voluntary statements.
Subsequently, the other parent issued a notice concerning custody and then filed CMA No. 105 of 2021 under Section 25 of the Guardians and Wards Act seeking a change in custody. In response, an application was filed under Order VII Rule 11 of the Code of Civil Procedure seeking rejection of the petition as not maintainable in law.
It was contended that the petition was barred as the issue of custody had been conclusively settled and that no cause of action arose. The applicant argued that the only available legal remedy would be to move under Section 26 of the Hindu Marriage Act, which empowers courts to vary, revoke, or suspend custody orders passed in matrimonial proceedings. It was submitted that without invoking that section, proceedings under the Guardians and Wards Act could not be sustained.
The respondent opposed the application and submitted that the petition was maintainable under Section 25 of the Guardians and Wards Act. It was further submitted that at the time of the divorce, the child was under five years of age, and the custody arrangement was made accordingly. The respondent argued that with the child now older, the custody matter deserved reconsideration and that the biological parent retained the right to seek custody under guardianship law.
The High Court analysed the statutory framework governing custody determinations. It recorded that “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.”
Justice Thaker further observed, “The fundamental right of a child, specially of a tender age to the love, care and protection of both parents…is well recognized as a basic human right.” The judgment affirmed that courts must act with caution, free from bias, with the paramount consideration being the child’s welfare.
However, the Court held that in the present case, the respondent had already waived custodial rights through mutual agreement, and no specific subsequent developments had been cited to justify reopening the issue. The Court recorded, “It is not the case of the respondent…that the petitioner…is not looking after the child…The husband has relinquished his right for grant of custody of the child and that the custody has already been granted to the wife.”
Addressing Section 25 of the Guardians and Wards Act, the Court clarified that the provision only applies when a ward has been removed from the custody of a guardian. In this case, custody had not been removed or taken unlawfully, but was granted under judicial decree. It was recorded, “Where…mother has been entrusted with the custody of the child by an order of the competent Court…and the child is all along, since such order, in her custody…such retention…cannot amount to any removal of the child, even if such retention is now against the wish of the natural guardian.”
The Court held that the respondent’s only available legal route was under Section 26 of the Hindu Marriage Act, which allows for modification or variation of custody orders passed under matrimonial law. Justice Thaker stated, “Section 26 of Hindu Marriage Act also states that, even after passing of the decree, the Court may from time to time revoke, suspend or vary any order passed in relation to the custody, maintenance and education of minor children.”
Further clarifying the standard for applications under Section 26, the Court stated that they must cite “specific time period that the non-custodial parent came to the knowledge of the fact of change of circumstances,” and explain “the delay in filing an application.”
The Court also outlined exemplary grounds where applications under Section 26 may be considered, such as custodial parent’s health issues, death, relocation, neglect, change in family structure, or child's welfare needs. However, it found that no such ground had been raised in the present case.
Concluding that the application under Section 25 of the Guardians and Wards Act was not legally sustainable, the High Court allowed the civil revision application. It quashed the trial court’s order that had rejected the application under Order VII Rule 11 CPC. Justice Thaker recorded, “The present Civil Revision Application is allowed. Order passed by the trial Court is quashed and set aside and…CMA No.105 of 2021 is rejected under the provision of Order VII Rule 11 of Code of Civil Procedure.”
It was further recorded that “in view of Section 26 of the Hindu Marriage Act, no application under section 25 of the Guardian and Ward Act could be maintainable.”
Advocates Representing the Parties
For the Petitioners: Aditya C. Yagnik, Advocate, Jayani B. Shah, Advocate
For the Respondents: Manan Bhatt, Advocate
Case Title: XXX v YYY
Case Number: R/Civil Revision Application No. 170 of 2024
Bench: Justice Sanjeev J. Thaker
[Read/Download order]
