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No Independent Right To Seek Custody U/S 25 Guardians & Wards Act Where Consent Decree Is Passed U/S 38 Special Marriage Act: P&H High Court

Arundhathi ,
  12 September 2022       Share Bookmark

Court :
Punjab & Haryana High Court
Brief :
Citation :
Dr. Priyanka Dahiya Vs Dr. Manish Raj

Case Title:
Dr. Priyanka Dahiya Vs Dr. Manish Raj

Date of Order:
September 6, 2022

Arvind Singh Sangwan

Petitioner- Dr. Priyanka Dahiya
Respondent- Dr. Manish Raj


This petition was challenging an order passed by the Additional Family Court, Karnal which dismissed an application filed by the petitioner-wife, seeking that a petition filed by the respondent-husband under Section 25 of the Guardianship and Wards Act be declined. Upon moving the petition against this order, this Court found that petition filed by the respondent under Section 25 of the Guardianship and Wards Act does not stand as it was barred by the provisions of Section 38 of the Special Marriage Act. The Court allowed this petition, and set aside the Family Court order.


  • Section 25, Guardianship and Wards Act, 1890- This Section was regarding custody of a minor child being given to the guardian. It stated that, if a ward leaves or is removed from the custody of a guardian and if the Court is of the opinion that it will be for the welfare of the ward to return to the custody of his guardian, an order for his return shall be made and for the purpose of enforcing the order the ward may be arrested and be delivered into the custody of the guardian.
  • Section 38, Special Marriage Act, 1954- This section was about Court orders regarding custody of children. It says that the District Court may pass such interim orders and make such orders if it may seem to be just and proper with respect to the custody, maintenance, and education of minor children, and also consistent with their wishes wherever possible. It may also after the decree, make, revoke suspend or vary from time to time, all such orders and provisions with respect to the custody, maintenance, and education of such children upon application by petition.


  • The petitioner was married to the respondent and they had a child. Since they could not get along well, they filed for a divorce petition with mutual consent, under Section 28 of the Special Marriage Act, before the Family Court of Sonepat. This was three months after the birth of their first child, and they had been living separately since 2015, the year in which their child was born.
  • The parties, on settling all claims, assets, and liabilities, mutually agreed that the custody of their child will be with the mother. At the stage of the first motion also, they agreed upon this statement and also agreed not to undertake any litigation in the future, concerning their marriage. In the second motion, they agreed that they were bound by this statement. In the decree granting divorce also, it was made clear that the parties are bound by this statement.
  • The respondent later filed a petition before the Additional Family Court of Karnal, under Section 25 of the Guardianship and Wards Act read with Section 6 of the Hindu Minority and Guardianship Act, 1956. He claimed that an agreement had been notarised at Delhi, on 13.10.2017, stating that he shall have meeting and visiting rights with his child once a week, and that he had the right to meet and spend time with the child during festivals, school functions, etc., and that if the mother marries, he shall be left with the child’s custody, if he desires so.
  • However, the petitioner submitted before the Court that these documents were forged and this move was only with the motive to harass the petitioner.
  • The petitioner in this petition before the Punjab and Haryana High Court prayed that the order declining her application to set aside the aforementioned petition filed by the husband be set aside.


  • Whether the respondent-father had independent right to move the Court under Section 25 of the Guardianship and Wards Act for the custody of his child and to revoke the statement he had agreed to at the time of divorce.


  • The petitioner firstly submitted that upon a Court query it was found that the respondent was an orthopaedic surgeon working in Dubai, who only comes to India occasionally. Contrarily, it should be considered that the mother is a permanent resident of Karnal, who has been working in a hospital and the child who is seven years now has been with her since his birth.
  • The petitioner argued that the petition filed by the respondent is based on forged and fabricated documents. The agreement dated 13.10.2017, which has been fabricated by the respondent as signatures or this agreement of the petitioner-mother is a result of impersonation and forgery. It was also pointed out that on various earlier occasions, when the divorce petition was filed, even during the recordings of the first and second motion joint statements, and also when the decree of divorce was granted, the respondent-father never relied upon the said agreement.
  • The counsel for the petitioner pointed out that under Section 38 of the Special Marriage Act, though the District Court may, from time to time, pass such interim orders and make provisions if necessary for the just and proper custody, maintenance, and education of minor children, and may also revoke the same upon an application by petition. However in this case the respondent cannot file a separate application under Section 25 as the divorce was granted under Section 28 of the Act by way of mutual consent. The respondent-husband had a remedy to approach the same Court in terms of Section 38 of the Special Marriage Act, 1956 but no independent suit is maintainable.
  • The aggrieved respondent can seek remedy under Section 39A of the Special Marriage Act, instead of seeking one under Section 25 of the Guardians and Wards Act, which can be invoked only for the return of a child who has left or is removed from the custody of his guardian.
  • It was also stated that it is true that even if a guardian has the option to voluntarily transfer custody of their child, they are free to revoke such agreement at any time. However, the Court may intervene to stop the transfer of custody of the child if found it was undesirable to do so. This was due to the fact that in this context, the welfare and interests of the minor take precedence over the parent's legal rights. The guardian, however, cannot change or cancel such custody if it is not based solely on the guardian agreement and has already been decided or ordered by a competent Court. Only the Court that issued the judgement or order can be petitioned and the process for doing so is outlined in Section 38 itself.
  • Even if revocation or revision of a custody order imposed by a competent Court is proven to be required for the welfare of the minor, a guardian cannot use the provisions of Section 25 of the Guardians and Wards Act simply for that purpose. In this case, the custody of the child was given to the mother by order of the District Court.


  • In reply, the learned counsel for the respondent submitted the agreement in question which was executed in New Delhi, regarding the visiting rights of the respondent with his child. In view of this agreement, it was submitted once it has come on record that mother Priyanka had remarried, the father Manish Raj has a right to recover the custody of the minor child.
  • It was also contended that the court's ability to exercise its jurisdiction over the petition brought under Section 25 of the Guardians and Wards Act and Section 6 of the Hindu Adoptions and Maintenance Act, 1956, was maintainable independently.
  • The respondent submitted that it should also be considered that the respondent had not been allowed to visit or meet his child and his rights to the same had not been provided.


  • It was found by the Court that this petition has been stayed by the trial Court for a very long time, since it was initiated in 2019. During a meeting of the respondent-father with his child, that had been arranged by the Bench it was noted that the child failed to recognise the respondent. After this, the matter had been adjourned as it has been pending for a long time since then.
  • The statement agreed to by both parties upon the divorce being granted had to be scrutinized carefully and the reason as to why the agreement was said to have been executed in Delhi was not pleaded until then. Upon such scrutiny, it is clear that it has been stated in it that the custody of the child shall be left to the mother and an undertaking agreeing not to carry out any litigation on this matter was given by the respondent. The agreement under question was not brought into consideration by the father even when the second statement was being recorded at the Family Court of Sonepat.
  • This case was more regarding the welfare of the minor child than the legal rights of the parties thus the circumstances since the birth of the child had to be considered.
  • When an agreement submitted is said to be inexistent by one party, it is procedure to ask to provide evidence as to whether it was forged or genuine. However, in this case, the trial court ought to have rejected it as the agreement was not produced at the time of the divorce or any consequent recordings of motions.
  • The petition filed by the respondent under Section 25 of the Guardianship and Wards Act does not stand as it was barred by the provisions of Section 38 of the Special Marriage Act. This was because he can seek remedy from the Court which had passed the impugned judgement only under Section 38 of the Special Marriage Act if he feels that any terms and conditions of the order have been violated, and cannot move independent of it. Also, the child was not forcibly removed from his custody, but rather, he had consented to the custody being given to the mother.


Thus the petition was allowed by the High Court citing that the respondent’s petition filed under Section 25 of Guardianship and Wards Act deserves to be barred. It was held that in terms of Section 38 of the Special Marriage Act, a father can approach the Family Court which passed the decree of divorce based on mutual consent, for seeking custody of the child living with the mother. However, the respondent had no independent right to move under Section 25 of the Guardianship and Wards Act, after a decree regarding custody of the child has been passed by a Court. Thus the judgement of the Family Court of Karnal court was set aside though the respondent could seek remedy according to law.

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