In S. Ambika Vs C.K.S. Sujee [CRP No. 3846 of 2024], the Madras High Court has held that child custody can be sought in interim application under the Hindu Marriage Act, 1955 and the Supreme Court’s decision in Priyanka Vs Santhosh Kumar [TP (Civil) No. 964 of 2021] dated 08.12.2022 cannot be interpreted so as to bar the statutory remedy available under the Act.
CASE SUMMARY
FACTS OF THE CASE:
- The Petitioner is the legally wedded wife of the Respondent, and in the course of their marriage, a girl child was born.
- Due to differences in their matrimonial life, they were separated. The Petitioner preferred a petition for restitution of her conjugal rights before the Family Court.
- During the pendency of the petition, the Petitioner took an interim application seeking interim maintenance and the Respondent took an interim application seeking custody of the minor child.
- The trial Court partly allowed the interim maintenance application, while granting only visitation rights on the application preferred by the Respondent by imposing certain conditions.
- Aggrieved by the grant of visitation rights, the Petitioner challenged the same by preferring the present Civil Revision Petition.
SUBMISSIONS OF THE PETITIONER:
- The Respondent ought to have preferred a separate application for child custody under the Guardian and Wards Act;
- In terms of the decision of the Supreme Court in Priyanka Vs Santhosh Kumar [TP (Civil) No. 964 of 2021] dated 08.12.2022, child custody cannot be sought in an interim application under the Hindu Marriage Act, 1955.
DECISION OF THE COURT:
The Civil Revision Petition was dismissed.
REASONS CITED:
- Section 26 of the Hindu Marriage Act, 1955 provides for passing interim orders with respect to child custody;
- The Supreme Court did not lay down any proposition in Priyanka Vs Santhosh Kumar [TP (Civil) No. 964 of 2021] to the effect that child custody cannot be sought in interim application made under the HMA, 1955. In the matter, the Supreme Court was dealing with a petition to transfer a restitution of conjugal rights petition from Family Court Puducherry to Family Court at Bangalore at the instance of the wife. The Family Court at Puducherry had set the wife ex-parte in the restitution petition and in the interim application preferred by the Husband seeking custody of their child, without affording opportunity to the wife to defend herself. While doing so the Family Court had not considered that she could not be expected to travel from Bangalore to Puducherry with the child to defend herself. Since the Court found such a procedure erroneous, the Court gave a finding that the order in interim custody petition was erroneous in law. This cannot be interpreted to mean that child custody cannot be sought in interim application under the Hindu Marriage Act, 1955.
Date of the Judgment: 26.09.2024
Counsel for Petitioner: Mr. Hari Hara Arun Soma Sankar
(This is a case summary and not an opinion piece.)
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