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Report No. 65

IV. Powers of The Matrimonial Court

20.19. Statutory provision.-

We now come to the specific question to be considered in this Chapter, namely, the extent of power of the matrimonial court to modify an earlier order passed by a court under the Guardians and Wards Act, 1890. The statutory provisions relating to the matrimonial courts competent under the various enactments are silent in this regard, inasmuch as they do not specifically permit the matrimonial court to vary an earlier order of another court, nor do they prohibit it from doing so.

20.20. Case law.-

So far as we could ascertain, the question whether the matrimonial court can vary an order passed by the guardianship court does not appear to have arisen in any reported case under Indian matrimonial legislation. Of course, the power of a guardianship court to vary its earlier order is well recognised. Orders as to the custody of a child under the Guardians etc., Act are always of a temporary nature. Those interested in the minor are at liberty to apply to the Court for modifications or alteration of such order whenever necessity arises.1-2

Similarly, the power of a matrimonial court to vary its own order is not disputed. In a Calcutta case3 between Parsis, it was laid down that merely because of an ancillary order passed in matrimonial proceedings,4 the father has been given the custody of the children and there is nothing against him so far as the children are concerned, it cannot be said that he has an absolute over-riding right in the matter of custody of the children. In this case, an order for custody was passed in a suit in which judicial separation had been granted to the wife.

Necessity for review of the order arose, it seems, because of some differences of opinion between the parents as to the school in which the children should be educated. Taking the view that the earlier order could be reviewed, the High Court pointed out that under section 49 of the Parsi Marriage and Divorce Act, the position would have to be considered in the light of all the circumstances and in the context of the children's welfare.

1. Sareszoati Sripad, ILR 1941 Born 455: 43 Boni LR 791: AIR 1941 Born 103.

2. Rattan Amoh Singh v. Kamaijit Kaur, AIR 1961 Punj 51 (54), para. 17.

3. Jambhed v. Zerin, AIR 1974 Cal 111 (114, 115), paras. 15 and 18 (S.K. Mukherjee and S.K. Dutta, JJ.).

4. Section 49, Parsi Marriage and Divorce Act, 1936.

21. English cases.-

The question dealt with in this Chapter does not appear to have directly arisen in any English case also, although case law is available as to the power of the High Court to vary an earlier Magisterial order. In one case, the High Court, in exercise of its wardship jurisdiction, was asked to modify an order made earlier by the Magistrate's Court.1 Stamp J. held that although be undoubtedly held jurisdiction to hear the case, he should exercise it only in exceptional circumstances.

It would appear that such jurisdiction could be exercised by the High Court where the case had special complexity2 or where the jurisdiction of the High Court is more extensive, efficacious or convenient, or where it is necessary to supplement the order passed by the Magistrate by giving relief which the Magistrate had no power to give. It may be noted that in the exercise of the wardship jurisdiction, the High Court may issue an injunction prohibiting a person from taking the child out of the jurisdiction. In one English case,3 such an order was passed by the High Court to give effect to the Magistrate's order awarding custody to the mother.

1. P. (in re:), (1967) 2 All ER 229.

2. P. (in re:), (1968) 1 WLR 1976.

3. H. (in re:), (1966) 1 All ER 952.

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