Gujarat High Court: In View Of Section 26 Hindu Marriage Act, No Application U/s. 25 Guardians & Wards Act Can Be Maintained

The Court allowed a Civil Revision Application filed by the wife concerning the custody of a minor child in a divorce case. The Court remarked that “it is required to be considered that when the parents are in conflict, the child’s well being should remain paramount concern, the Court must ensure that minor child is not treated as an object to be passed back and forth, but rather a person whose stability and security must carefully be protected.”

A Single Bench of Justice Sanjeev J Thaker held, “In view of section 26 of the Hindu Marriage Act, no application under Section 25 of the Guardians and Wards Act can be maintained. Therefore, if there is any breach of any agreement then only course open to the parties was to approach the Court which pass the decree for divorce as contemplated under the provisions of section 26 of the Hindu Marriage Act.”

Advocate Aditya C Yagnik appeared for the Applicant, while Advocate Manan Bhatt represented the Opponent.

Brief Facts

A divorce Petition filed under the provisions of Section 13(b) of the Hindu Marriage Act, 1955 (HMA), where the wife had waived her right to maintenance or any properties belonging to the husband. The Family Court granted custody of the minor child to the wife, as per mutual consent. The final Order upheld that the minor child would remain with the wife.

Subsequently, the husband issued a notice regarding the custody of the minor child, and then filed an Application seeking custody of the minor child under the provisions of Section 25 of the Guardian and Wards Act.

The wife filed an Application under Order VII Rule 11 of the CPC, arguing that the Petition was not maintainable under the Guardian and Wards Act, given the prior decree under Section 13(b) of the HMA. The Family Court rejected this Application.

Court’s Observations

The High Court noted that the Family Court's Order granting custody to the wife had attained finality. It referred to Section 25 of the Guardian and Wards Act, which deals with the title of a guardian to the custody of a ward.

“In the present case, there was no justification on the part of the respondent husband to approach the Court for the relief of custody of minor child after the judgment and decree passed in Family Suit,” the Bench remarked.

The Bench further explained, “The court cannot invoke the provision of section 25 of the Guardians and Wards Act solely for the purpose of alteration and revocation of an order of custody made by the competent Court even if such revocation and alteration are required for the minor child’s welfare only alternatively that the petitioner has is to move an application under section 26 of the Hindu Marriage Act.”

The Court held, “In the present case, the custody of the minor child is with the petitioner wife by an agreement between the parties and as the custody of the minor child is with the petitioner wife by a valid agreement between the parties, and therefore, the claim of the respondent husband being the father of the minor child becomes irrelevant and section 26 of the Act contemplates that the Court may, from time to time, revoke, suspend or vary such orders and the provisions previously made thereunder, and therefore, since no application was made under section 26 of the Hindu Marriage Act, no relief can be granted to the respondent husband arising out of an application under section 25 of the Guardians and Wards Act.”

Consequently, the Court ordered, “In view of section 26 of the Hindu Marriage Act, no application under section 25 of the Guardian and Ward Act could be maintainable. Therefore, the present Civil Revision Application is allowed. Order passed by the trial Court is quashed and set aside and in view of the said fact, the proceedings before the trial Court i.e. CMA No.105 of 2021 is rejected under the provision of Order VII Rule 11 of Code of Civil Procedure.”

Accordingly, the High Court allowed the Civil Revision Application.

Cause Title: X v. Y (Neutral Citation: 2025:GUJHC:14489)

Appearance:

Applicant: Advocates Aditya C Yagnik and Jayani B Shah

Opponent: Advocate Manan Bhatt

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