26. Custody of children. In any proceeding under this Act, the court may, from time to time, pass such interim orders and make such provisions in the decree as it may deem just and proper with respect to the custody, maintenance and education of minor children, consistently with their wishes, wherever possible, and may, after the decree, upon application by petition for the purpose, make from time to time, all such, orders and provisions with respect to the custody, maintenance and education of such children as, might have been made by such decree or interim orders in case the
proceeding for obtaining such decree were still pending, and the court may also from time to time revoke, suspend or vary any such orders and provisions previously made.In this section the proceeding should already be pending before the court under Hindu Law because this is a misc. application.
25. Title and guardian to custody of ward.-
(1) if a ward leaves or is removed from the custody of a guardian of his person, the Court, if it is of opinion that it will be for the welfare of the ward to return to the custody of his guardian, may make an order for his return and for the purpose of enforcing the order may cause the ward to be arrested and to be delivered into the custody of the guardian.
For the purpose of arresting the ward, the Court may exercise the power conferred on a Magistrate of the first class by section 100 of the Code of Criminal Procedure, 1882 (10 of 1882).
(i) To invoke section 25 of the Act, the sine qua non is a ward leaving or being removed from the custody of his guardian. A guardian can by voluntary agreement vest another person with the custody of his child such an agreement can be remarked and the guardian can also invoke section 25 of the Guardians and Wards Act, 1890 that the ward has been removed from his custody. But once a custody has been decreed or ordered by the Court, the guardian cannot alter or revoke such custody unilaterally and extrajudicially, but can only move the Court for the variation, revocation or suspension of the order; Sibani Banerjee v. Tapan Kumar Mukherjee, AIR 1990 Cal 4.
(ii) If the natural or legal guardian vests another person with the custody of his child, he can demand return of the child, but if the other refuses to hand over the child, the child would be deemed to have been removed from the custody of the guardian so as to invoke section 25 of the Act. The maternal grandparents of the granddaughter were old, unable to maintain themselves, had misappropriated jewellery of the mother worth Rs. 7500, held that the child had been removed from custody of father and it is in the welfare of the child to return to her father; S. Abboy Naidu v. R. Sundara Rajan, AIR 1989 Mad 131.
(iii) The Court can order the return of the child if it feels that the welfare lies with the guardian. Whether the jurisdiction under section 25(1) is mandatory or directory, it can order a return only and only if it is of opinion that such return is for the welfare of the ward. The expression ‘may’ clearly invests the Court with the discretion to order or not to order return and ‘may’ order return only if it is of opinion that it will be for the welfare of the ward; Rajkumar Gupta v. Barbara Gupta, AIR 1989 Cal 166.
(iv) Where the child is in the factual custody of one who has no legal right and is detained against the will of the legal guardian, the child shall be deemed to have been removed by that other within the meaning of section 25(1). But change of custody can be ordered only if it is for the welfare of the child; Tarun Ranjan Majumdar v. Siddhartha Datta, AIR 1991 Cal 76.
(v) Welfare is to be considered in the widest sense of the term, though the father as natural guardian has a prima facie right to minor’s custody this may be negatived if infant’s welfare lies in keeping him in his mother’s or grandparents’ custody because children cannot be treated as chattel or property; Mohamed Khalid v. Zeenat Parveen, AIR 1988 All 252.
(vi) For determining ‘welfare’ of the child the questions to be considered are: (a) Who would have the better care and better consideration for the welfare of the infant? (b) Where is he likely to be more happy? (c) By whom the physical and mental development and comfort of the child can be better looked after? (d) Who has not only the desire but a determination, not only concept but also capacity to provide for a better education and round the clock nursing of the child? (e) Who would be available by the side of the child when the child would need love and affection, the care and counselling, the protection and patting up? In this case the Court held that welfare of child lies with mother as she was working as a teacher in a reputed school while the father was still in the process of establishing his business and had no time and money to care for his child; Jayant Barar v. Deepa Barar, AIR 1994 NOC 269 MP.
(vii) Personal law of the applicants has also to be considered while considering the welfare of the child. According to Hanafi School of Mohamedan Law mother is entitled to the custody of her daughter until she attains puberty while according to Shajjii and Malikii Law the mother is entitled to the custody of the minor child until her marriage. Held that the mother was entitled to the custody of her minor daughter also according to personal law and also the welfare was with the mother even though she was not financially sound as father; Suharabi v. D. Muhammed, AIR 1988 Ker 30.
(viii) A father can be deprived of the custody of his child if it is proved: (a) that the father completely neglected to maintain the child and (b) he had remarried and the step-mother may not treat the child kindly which may have adverse effect on mental and physical growth of the child; Jaswant Kaur v. Manjit Singh Marwah, AIR 1985 Del 159; See also Km. Sunita v. Shyam Kali, AIR 1982 All 2.
(ix) Guardian includes every kind of guardian known to law and that not only actual physical custody but also constructive custody of the guardian. If the persons who are not legal guardians were intended to be excluded from invoking section 25 of Guardians and Wards Act, 1890, it would have been very easy by incorporating such a limitation into section 25 or even under section 4(2) of the Act; Suresh Babu v. Madhu, AIR 1984 Mad 186.
(x) While considering an application under section 25 of the Act it is open to the Court to make any arrangement relating to the minor which he considers to be in the best interest of the minor. The Court directed that the child should be sent to a Boarding School as the acrimonious atmosphere in the house would have a bad effect on the proper growth of the child; Amrik Rai v. Satpal, AIR 1983 P&H 304; See also Meera Devi v. Shyam Sunder Aggarwala, AIR 1985 Ori 65.
(xi) Even in guardianship cases, if assertions of immorality, adultery or living in adultery are made there should be the same standard of proof as has been applied in matrimonial cases; Madhu Bala v. Arun Khanna, AIR 1987 Del 81.
(xii) The mother of the minor was driven out of the house by the in-laws after the death of the father and the children were forcibly kept by them. It was held that as the mother was the natural guardian after the death of the father and also becuase the mother was in a better position to maintain the children, custody was directed to be given to mother; Ram Prasad v. Poornima, AIR 1985 NOC 14 Del; See also Salamat Ali v. Majjo Begum, AIR 1985 All 29.
(xiii) Mother was seeking maintenance from the father. Held that as mother was unable to maintain herself, the custody of children should be given to father; Master Zubeen v. Principal Judge, Family Court, Lucknow, AIR 1984 All 147.
in this section you have to file a fresh petition for appointment of Guardian and you can get interim order to u/s 12 of this act and you also can be file a n application to get restriction/stay order under Order 39 rule 1 & 2 of CPC
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