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Report No. 65

Chapter 20

Orders for Custody Variation by the Matrimonial Court

I. Introductory

20.1. Conflict between order of the matrimonial Court and order under the Guardians & Wards Act.-

In the course of our consideration of the subject of ancillary orders1 we had occasion to consider the question whether an order for the guardianship of the person under the Guardians & Wards Act, 1890, would be subject to an order passed later by a court which exercises matrimonial jurisdiction and passes an ancillary order in regard to custody, education and maintenance of children. In other words, can a matrimonial court pass an order modifying an earlier order passed by a competent court under the Guardians and Wards Act as to the custody of children? Or, the order earlier passed by the Court competent under the Guardians and Wards Act, must hold the field-subject, of course, to variation by that very Court? This was the question raised for our consideration.

1. Chapter 19, supra.

20.2. Section 26, Hindu Marriage Act, 1955.-

A typical provision empowering the matrimonial court to pass orders for custody of children is in section 26 of the Hindu Marriage Act, quoted below:

"26. In any proceeding under this Act, the Court may, from time to time, pass such interim orders and made 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."1

1. Section 26, Hindu Marriage Act, 1955.

20.3. In order to enable us to consider the issues raised by the query, we studied the legal position on the matter and on an examination thereof, ultimately come to the conclusion that it falls outside the scope of the present Report. However, we thought that since we have studied the matter, and since the matter is of some importance and may fall to be considered by the Commission in the future, it would not be inappropriate if we state below, in brief, the question, the legal issues raised thereby and the present position.

20.4. General nature of the question.-

We may, at the outset, point out that the matter is really of a general nature, and is not confined to the Guardians and Wards Act. The query was raised with reference to the Guardians and Wards Act, but it really involves a wider question relating to the competence of the matrimonial court to modify previous orders as to custody passed by other courts by virtue of powers conferred by the relevant Acts. Law conferring such a power is not to be found in any single enactment. We are mentioning this aspect because if, in the future, further legislation is contemplated, this aspect will be of some importance in coming to a conclusion as to whether further legislation is needed. Even if further legislation is considered proper, it cannot prima facie, take the shape of a provision in a law relating to the recognition of foreign divorces.

20.5. Guardianship and custody.-

It may also be stated that matrimonial legislation in India is not contained in one enactment, but is to be found in several enactments. We need not respect all that we have already stated on the subject earlier1 in this Report. Before we deal with the relevant legal provisions, we may also make it clear that guardianship and custody are not identical concepts. The guardian may well not have the custody and yet, by virtue of his guardianship, he may still exercise powers regarding marriage and education. "'Guardianship is certainly a more comprehensive and more valuable right than mere custody."2 Though under section 24 of the Guardians and Wards Act, the guardian is charged with custody3, the two concepts are not identical. After these introductory observations, we shall consider the present law.

1. Chapter 5, supra.

2. Kumaraswamy v. Rajammal, AIR 1957 Mad 563 (567), para. 13.

3. Section 24, Guardians and Wards Act, 1890.

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