DIPANKAR CHATTERJEE Vs. RUPA ROY

JUDGEMENT

(1.) THE impigned order is one whereby the learned Judge has rejected the application under Section 26, Hindu Marriage Act read with Section 151, Code of Civil Procedure filed by the appellant, the quondam husband, against the respondent, the quondam wife, for variation of the order of custody relating to their minor children and has also allowed the application filed by the respondent-wife for enforcement of the earlier order. The learned trial Judge has held that Section 26 of the Hindu Marriage Act could not be invoked for the prayer for variation made in the application. If the application, as held by the learned Judge, could not lie under Section 26, Hindu Marriage Act, then the present appeal also would not be maintainable, as under Section 28 of the Hindu Marriage Act, the only orders which are applicable are non-interim orders relating to custody, maintenance and education. of minor children under Section 26 and orders of permanent alimony and maintenance in favour of any of the spouses under Section 25. We are, however, afraid that the learned Judge was wrong and that the application was perfectly maintainable under Section 26 and the impugned order, not being an interim one, is accordingly appealable under Section 28.

(2.) THE appellant and the respondent, while obtaining a decree for divorce by mutual consent under Section 13b of the Hindu Marriage Act, agreed in writing to certain terms and conditions relating to the custody Of their children, and accordingly a consent order was passed by the trial court in accordance with the said terms and conditions. The order, so far material for our purpose, was that the children were to remain under the custody of the appellant-father subject to the conditions that for some days in the week and for some portions of the school vacations and holidays, as specified in the order, they would be sent by the appellant-father to the respondent -mother. For reasons alleged in the application, the appellant-father has now prayed that those conditions requiring him to send the children for some period to the respondent-mother be removed and revoked.

(3.) THE trial Judge does not, as he obviously cannot, dispute that order in matrimonial causes relating to the custody of children can be passed and that the order relating to custody in the divorce case was passed under Section 26 and that any such order can also be revoked, suspended or varied under that Section. But he is inclined to think that by the application, giving rise to this appeal, all that the appellant-father has sought is, no variation, revocation or suspension of the order relating to custody, which is with him and shall remain with him, but only removal or revocation of the conditions requiring him to send the children to the respondent for some specified days or periods. His view is that under the express terms of Section 26, the application would lie only for orders relating to "custody, maintenance and education" of Children and for revocation, suspension or variation of "such orders. . . . . previously made". The learned Judge has accordingly ruled that since under the previous order made while decreeing divorce, custody of the children has been granted to the appellant-father and he is not seeking for the revocation, suspension or variation of such custody, but only removal of some conditions requiring him to send the children to their mother for certain time or period, Section 26 could not be invoked.