SC guidelines that orders granting non permanent custody or visitation rights for youngsters can not move in a plea for restoration of marital rights

The Supreme Court has held that if we challenge 9 of the Hindu Marriage Law, orders granting temporary custody or visitation rights for children cannot be made.

In the present case, the husband filed a lawsuit under Article 9 of the Hindu Marriage Law in order to have the marital rights restored against his wife. In the said proceedings an IA was filed seeking custody of the child and it was maintained and disposed of ex parte.

The wife then applied to the Supreme Court to request the referral of the said case to the Bengaluru Family Court.

On the other hand, the husband submitted that the Section 9 application that the wife applied for the transfer had already been decided and therefore the immediate action was unsuccessful.

Initially, Surya Kant and JK Maheshwari noted that she was apparently denied a fair trial as she could not leave the child in Bengaluru to visit Puducherry and contest both petitions.

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According to the court, the husband should have filed an independent and separate petition under US 26 of the Hindu Marriage Act, rather than obtaining an order through a Section 9 proceeding.

In this regard, the court ruled that the order to give the husband temporary custody of the child is patiently unlawful.

Theorem, the court reversed the contested order and ordered that the immediate proceedings should be transferred to the Family Court, Bengaluru.

Title: Priyanka vs. Santoshkumar

File number: TP Civil 964 of 2021

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