Section 26 hindu marriage act - independent & seperate run

This query is : Resolved 

Online (Querist)
18 November 2018

My divorce case is pending in Family court jaipur and I have filed a case for child custody and interim access to child under sec 26 HMA 1955 and it has been registered as seperate and independent case. Now opposite party Adv has opposed by Appl under order 7 rule 11 that it can only be filed in divorce case as a simple Application. Kindly provide citation or suggestions to support of this.
I have heard that it can be run independent in family court.

Vijay Raj MahajanOnline (Expert)
19 November 2018

Application under section 26 HMA for child custody and maintenance doubt is during pending main divorce petition however the application can even be filled at later stage for order for child custody and the independent application in this regard will be entertained by the Family Court irrespective of the Divorce petition already finalized.
The application under order 7 rule 11 CPC just on the ground that application u/s 26 HMA is mentioned as independent petition and not application is baseless preposition and this application will be dismissed.

sachin sharma (Expert)
20 November 2018

Agreed with Mr Vijay Raj

20 November 2018

Requesting to suggest some argument with citations to maintain sec 26 application as independent proceeding. I am unable to find it.

Nadeem QureshiOnline (Expert)
15 March 2020

The application under Section 24 & section 26 of the Hindu Marriage Act-1955 cannot be filed independently as both the applications can only be filed during the pendency of the cases filed under the Hindu Marriage Act-1955, like RCR, Judicial Separation, or Divorce, etc and not separately.

it is immaterial that your case be heard separately or along with the pending case, think about the result and relief

Feel Free to Call

Raj Kumar MakkadOnline (Expert)
15 March 2020

A Court while dealing with custody cases, is neither bound by statutes nor by strict rules of evidence or procedure nor by precedents. In selecting proper guardian of a minor, the paramount consideration should be the welfare and well-being of the child. In selecting a guardian, the Court is exercising parens patriae jurisdiction and is expected, nay bound, to give due weight to a child's ordinary comfort, contentment, health, education, intellectual development and favourable surroundings. But over and above physical comforts, moral and ethical values cannot be ignored. They are equally, or we may say, even more important, essential and indispensable considerations. If the minor is old enough to form an intelligent preference or judgment, the Court must consider such preference as well, though the final decision should rest with the Court as to what is conducive to the welfare of the minor.
Orders of Courts below not in consonance with law
73. As already noted, Antariksh was aged six years when the trial Court decided the matter. He was, however, not called by the Court with a view to ascertain his wishes as to with whom he wanted to stay. The reason given by the trial Court was that none of the parties asked for such examination by the Court.
74. In our considered opinion, the Court was not right. Apart from statutory provision in the form of sub-section (3) of Section 17 of 1890 Act, such examination also helps the Court in performing onerous duty, in exercising discretionary jurisdiction and in deciding delicate issue of custody of a tender-aged child. Moreover, the final decision rests with the Court which is bound to consider all questions and to make an appropriate order keeping in view the welfare of the child. Normally, therefore, in custody cases, wishes of the minor should be ascertained by the Court before deciding as to whom custody should be given.

Raj Kumar MakkadOnline (Expert)
15 March 2020

Right of visitation has not at all been defined under Hindu Marriage Act but said right has been recognized by judicial pronouncement while balancing the equity between the parents i.e. husband and wife or any other third party. Visitation right is ante- thesis of custody inasmuch as one who has got custody, he/she will not require visitation right and one who has not got custody then he/she can certainly pray for visitation right to meet near and dear one. Said right has been recognized by Hon'ble Apex Court in the case of Kumar V. Jahgirhar Vs. Chetana K Ramatheertha reported in 2001 AIR (SC) 2179 and in the case of Shila B Das Vs. P.R. Sugasree reported 2006 AIR Jharr-277 .

In the said case where custody has been granted to one then visitation right has been granted to other. Said right has been conferred keeping in view human angle attached to the problem.

Hon'ble Apex Court made it clear that it is human problem and same required to be solved with human approach.

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