Orders granting visitation/non permanent custody of kids can’t be made in a continuing to revive matrimonial rights: Supreme Court

The Supreme Court found that orders granting visitation rights or temporary custody of children cannot be made in a proceeding under Section 9 of the Hindu Marriage Law (Restoration of Marital Rights).

In this case the husband filed a petition under Section 9 of the Hindu Marriage, Act 1955 seeking the restoration of marital rights against the wife in the Puducherry Family Court. In these proceedings he made an interlocutory application, allegedly to be an application under Section 26 of the Act, for custody of the child. Both petitions were entertained exparte and then decreed.

Thereafter, the wife approached the Apex Court and requested that this case be transferred to the Family Court, Bengaluru. The husband claimed that the wife’s application for a Section 9 transfer had already been decided and the immediate application for transfer was therefore unsuccessful.

“It seems to us that the petitioner (wife) was denied a fair trial simply because she was unable to leave the child in Bangaluru and visit Puducherry to contest both petitions. The defendant (husband) should have filed a separate and independent petition under Section 26 of the Hindu Marriage Act 1955 rather than seeking an order in the pending proceedings under Section 9 of the Act. The order of 03062019 granting the respondent (husband) visitation rights or temporary custody of the child is therefore manifestly illegal. said bench Justices Surya Kant and JK Maheshwari.

The court therefore invoked and overturned its powers under Article 142 of the Indian Constitution. The court then ordered the transfer of this case to the Bengaluru Family Court.

case details

Priyanka vs Santoshkumar | 2022 Live Law (SC) 1021 | Transfer Application (Civil) 964 of 2021 | December 8, 2022 | Judges Surya Kant and JK Maheshwari

For the petitioner(s) Mr. Shanthakumar Mahale, Adv. Herr. Rajesh Mahale, AOR Mr A Sharma, Adv.

For the respondent(s) Mr. TV Ratnam, AOR

top notes

Hindu Marriage Law, 1955; Section 9, 26 – Orders granting visitation rights or temporary custody of children cannot be made in a Section 9 Hindu Marriage Act proceeding for the restoration of marital rights – A separate and independent Section 26 application must be made .

Click here to read/download the order