Section 26 of the hindu marriage act 1955
Avishek
(Querist) 20 December 2014
This query is : Resolved
in a 13 B application under the hindu Marriage Act 1955 one of the parties being the wife has agreed with the husband that the two male children being aged about 7 years and 11 years born out of the wedlock shall be remained under permanent custody of husband and this agreeable fact has been made part of the clauses of the application under section 13B of the hindu marriage Act 1955 . The application under section 13B after getting filed in court, is now pending for final hearing with the expiration of six months.
The wife in the application under 13B has agreed to give permanent custody of the two male child to the husband on the specific undertaking in a stamp paper with witnesses by the husband that the husband will send the children in every month to the wife for some days to live with her.
Now after filling the 13 B application the husband did not send the two male child to the wife in spite of her repeated request by breaking his undertaking.
Now my specific queries to the esteemed experts in the following:
1. as the application under section 13B is pending, whether the wife can file an application under section 26 of the Hindu marriage Act interalia praying permanent custody of the two children or can claim her visitation right of the two children.
2. whether such application under section 26 of the Hindu marriage act in a proceeding under section 13 B is maintainable ?
3. If maintainable ,provide me some rulling of high courts or Apex court in this respect.
in the event of any application is filed under section 26 of the Hindu marriage act 1955 for the custody and/or for visitation right of the wife pertaining to the two children and u/s 13B application is pending for final hearing ,i want to know :
whether court will decide first the section 26 Application of wife prior to decide the application U/s 13B of the Act.
Devajyoti Barman
(Expert) 20 December 2014
1. Yes she can and in that even the consent of wife in the application u/s 13B will have be withdrawn.
2.Separate suit will have to be filed.
3.NA
Rajendra K Goyal
(Expert) 20 December 2014
File separate application for custody by withdrawing 13B application. Citation not supplied.
V R SHROFF
(Expert) 20 December 2014
WITHDRAW CONSENT. IN II ND MOTION.
So no custody given ..
ajay sethi
(Expert) 20 December 2014
wife is at liberty to with draw her consent for divorce by mutual consent on account of breach of undertaking by husband given in consent terms . we dont provide citations
Avishek
(Querist) 20 December 2014
proceeding under section 26 of the Hindu Marriage Act 1955 during the pendency of U/s 13B application.
Devajyoti Barman
(Expert) 21 December 2014
As long as your consent in 13B is not withdrawn, you can proceed with custody suit.
Devajyoti Barman
(Expert) 21 December 2014
In your case section 25 of the Act applies, not section 26 as stated by you.
ROHIT SHARMA
(Expert) 21 December 2014
1. I read such condition of visitation mentioned in the brief of the petition filed u/s 13-B H.M.A. is a proof that the children are in fact in the custody of the father and during such phase of cooling period the children will remain to be in custody of the father alone and no visitation rights can be accrue until and after the time of award of the decree of M.C.D. It is condition that such visitation will be permitted by the custodian after the award of the decree.
2.If such visitation is sought by her in her application u/s 26 H.M.A. - while no decree has been awarded - then it is preposterous and such issue cannot be heard between the cooling time and the final award of the decree.
3. In no way does this application invites attraction of s. 25 of the H.M.A.
4. Contest such application if severed with notice to make a say in response to such application of her's.
Dr J C Vashista
(Expert) 22 December 2014
I agree with the experts, nothing more to add.
T. Kalaiselvan, Advocate
(Expert) 25 December 2014
As rightly observed by expert Mr. Rohit Sharma, since the custody of children with the husband and visitation rights for wife have been made as a clause in the petition for divorce under mutual consent, so this will come into force only after the petition is allowed, decree is passed on the petition. Therefore the question of custody and visitation rights do not arise impending decision on the divorce petition. However, if the wife apprehends foul play in the conditions imposed as clauses to the divorce petition, she is at liberty to withdraw her consent for divorce any moment.
