(Guest)

Is S. 26 HMA stand alone Application ?

Respected members,
Kindly guide further; Husband / wife have no past / present activity under HMA The Act. Wife files S. 26 HMA for custody / visitation of minor child (Son 11 years) who is in custody of father.
Can wife's / mother of the child S. 26 HMA Application succeed when there is no activity by eitherof the parties under HMA The Act in past or at present?
Kindly highlight maintainability of S. 26 HMA petition of mother of child when no activity in past and present are there under HMA The Act.
I have come across a Hyderabad Trial Court Order on above means the Trial Court accepted the petition. Bare reading of S. 26 HMA shows that it is not maintainable is my view.
Rgds,

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3 Replies

Deekshitulu.V.S.R (B.Sc, B.L) 30 August 2009

Sec. 26 is not an independent and procedural section. It can be used only as an interlocutory measure. I fail to understand how the court has given such a verdict and on what ground. The details are lacking.

Adv. Deepak (Advocate) 30 August 2009

Resp. Mr. D. Arun Kumar, I agree with my colleague Mr. Deeksh*tulu V.S.R. B.Sc., B.L. that S.26 of HMA is not independent section but is a procedural section and unless any proceeding under HMA is going on, it cannot be invoked. But wife can claim custody of minor child under S.6 of Hindu Minority and Guardianship Act. If at all wife has preferred an application under S.26, the court may consider it under S.6 of Hindu Minority and Guardianship Act and pass suitable orders.

(Guest)

Dear Sh. Deeksh*tulu and Sh. Deepak

That is the most interesting part of the Order. This is a case 2008 where in the wife as petitioner to a stand alone S. 26 HMA Application lost the custody of the child (male) to father / respondent. The Judge took the whole case on Mayna's Treatise on Hindu Law Usage 14 he says and I quote

"Contrary to the Section which is Mayne's Treatise on Hindu Law Usage 14 conditions contending the Hindu Marriage Act clearly mentions that the above orders may be passed as interim order in proceding and also passing of decree and even subsequent there to. The court has also empowered to or suspend or vary the orders from time to time"

Now why I am taking this discussion of an interesting case now is that the poor father who has the custody of the male (now 11 years) child is again slapped by same S. 26 HMA after 1 year of his wife loosing the above stand alone S. 26 HMA and till date either of them have no activity under HMA. which is more interesting to note.

Any guidance on this "Mayne's Treatise on Hindu Law Usage 14" will help us understand if S. 26 HMA could be filed just like a stand alone petition?. I have the Order copy of 2008 and it is in 1.2 MB (Adobe PDF) and if any one of you are interested I can send it as PM (kindly send your email ID for the same).

I hope this is interesting discussion on practice and procedures followed in Trial Courts contrary to the Legislative Intents :-)
Rgds,

D. Arun Kumar, New Delhi