Guardian, Benefits, and Judicial Safeguards: Drafting Minor-Property Orders That Can Survive Appellate Scrutiny

 When a court is asked to appoint a guardian so that a relative may receive service benefits, insurance proceeds, compensation, or other monetary dues belonging to minors, the real question is rarely confined to formal entitlement. The judicial task is to determine whether the proposed arrangement actually protects the welfare, estate, and future interests of the minors in a practical and enforceable manner. Under the Guardians and Wards Act, 1890, the welfare of the minor is the paramount consideration, and that principle must control both the grant and refusal of guardianship relief.

Why these matters require judicial caution

Applications for appointment of guardian are often presented as routine requests to facilitate withdrawal of funds payable after the death of a parent or breadwinner. Yet such applications frequently involve a hidden tension between immediate access to money and long-term preservation of the minors’ estate. Section 17 of Guardian and wards Act requires the court to consider the welfare of the minor, including the character and capacity of the proposed guardian and the surrounding circumstances, rather than treating kinship alone as decisive. This broad welfare jurisdiction permits the court to look beyond the prayer clause and assess whether release of a lump sum would expose the minors to misuse, dissipation, or irreversible loss.

Print Page

Best Practices in Guardian Appointment Orders: A Checklist for Judicial Clarity

 

A procedural and drafting reference for District Judges and Presiding Officers hearing applications under the Guardians and Wards Act, 1890, the Hindu Minority and Guardianship Act, 1956, and Order XXXII of the Code of Civil Procedure, 1908.

Why This Matters

Guardianship orders sit at an unusual intersection of jurisdictions: they are civil in form but touch matters — the person, property, and welfare of a minor or a person of unsound mind — that the law treats as being in the special protective custody of the court. A guardianship order that is procedurally sound but substantively thin, or substantively well-reasoned but procedurally defective, invites appellate interference on either count. This checklist consolidates the recurring procedural steps, the judicial findings that should appear on the face of every order, and the drafting habits that most often attract adverse remarks from appellate and revisional courts.

Print Page

Kerala HC explains the concept of evident advantage to the ward under Guardian and wards Act

Family - Permission to alienate property - Petition filed under Section 29 of the Guardians and Wards Act, 1890 for permission to alienate the property of a minor, which was was "closed" by the Court below - Held, Section 31 of the Act stipulated that permission could not be granted except in a case of necessity or of evident advantage to the ward - Expression 'evident advantage' did not warrant a negative or narrow meaning - Test should be the approach of prudent man to the problem - If this test was applied, the Court below was not justified in insisting that permission could be granted only when the parents find out another property for purchase - Interest of the minor would not be jeopardised as the Petitioners had offered to deposit the sale proceeds in Court or in the manner directed by the Court - Courts should not take a rigid view in the matter - Court, after granting permission, could have seen that the money was utilised profitably or to the advantage of the minor by acquisition of any alternate property - Order of the Court below set aside - Appeal allowed.

IN THE HIGH COURT OF KERALA

M.F.A. 935 of 1994

Decided On: 23.12.1994

In Re: Tomy George

Hon'ble Judges/Coram:

K.T. Thomas and P.V. Narayanan Nambiar, JJ.

Author: P.V. Narayanan Nambiar, J.

Citation: MANU/KE/0224/1994

Print Page

Supreme Court summarises the principles of S 8 of Hindu Minority and Guardianship Act

The Court summarised principles on Section 8, culled out from various precedents, as follows :

1. Section 8 imposes a statutory restraint on the powers of a natural guardian in respect of a minor's immovable property and requires prior permission of the concerned Court for alienation as a protective measure.

2. An alienation of a minor's immovable property made without the permission contemplated under Section 8(2) is not void ab initio but voidable at the instance of the minor or any person claiming through the minor.

3. The right to avoid unauthorized alienation accrues to the minor upon attaining majority and must be exercised within the period of limitation prescribed by law.

4. Avoidance under Section 8(3) need not necessarily be effected through a formal declaratory suit and may be manifested through clear and unequivocal conduct inconsistent with the continued validity of the transaction, provided such conduct occurs within limitation.

5. Reliefs such as recovery of possession or assertion of exclusive title are contingent upon the prior avoidance of the impugned alienation, and so long as the transaction remains unavoided, it continues to bind the minor's interest.

6. Section 8 governs alienation of a minor's separate or self-acquired property and does not apply to alienation of undivided joint family property effected in accordance with traditional principles of Hindu law.

7. The requirement of prior permission under Section 8 is rooted in the welfare of the minor and must be applied purposively, with reference to whether the transaction is necessary or demonstrably beneficial to the minor.

8. By rendering unauthorized alienations voidable rather than void, Section 8 balances the protection of a minor's proprietary interests with the need to preserve certainty and stability in property transactions

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 8405 of 2026 

Decided On: 03.06.2026

Shephali Chakraborty Vs. The State of West Bengal

Hon'ble Judges/Coram:

Sanjay Karol and N. Kotiswar Singh, JJ.

Author: Sanjay Karol, J.

Citation: MANU/SC/0611/2026

Print Page

COMPREHENSIVE CHECKLIST TOOLKIT FOR DISTRICT JUDGE FOR APPOINTMENT OF GUARDIAN OF MINOR FOR WITHDRAWAL OF SERVICE BENEFITS OF THEIR DECEASED FATHER

 Guardianship Appointment & Service Benefits Withdrawal

Minor Child (Deceased Father) - Grandmother Applicant

PART A: PRE-ADMISSION CHECKLIST (SECTION 11 G&W ACT)

A.1 PRELIMINARY SCRUTINY (SECTION 10 G&W ACT)

•             ☐ Petition filed in correct jurisdiction: Application is before District Court having territorial jurisdiction over minor’s ordinary residence

•             ☐ Application in prescribed format: Petition contains all particulars required under Section 10, including:

–            ☐ Full name, age, religion of minor

–            ☐ Full details of deceased father

–            ☐ Status of mother (deceased/incapacitated/unfit)

–            ☐ Description of property/service benefits involved

–            ☐ Qualifications of grandmother-applicant

–            ☐ Causes necessitating guardianship

–            ☐ Affidavit of willingness to act (Form 2)

•             ☐ Court fee properly paid: Verification of appropriate court fee as per Guardianship Rules

•             ☐ Appointment not prohibited: Grandmother is not disqualified under Section 19 (e.g., not a non-believer in religion of minor in Hindu context)

Print Page

Allahabad HC: Ordinary residence of child for the purpose of S 9 of Guardian and wards Act is mixed question of law and fact and it can not be decided in application for rejection of plaint

 In the instant case, the factum of 'ordinary residence' of the minor is a disputed question of fact and thus, the question whether the Court at Ghaziabad has territorial jurisdiction to entertain the petition under Section 25 of the Guardians and Wards Act, 1890 is a mixed question of law and fact. The aforesaid question cannot be determined without holding an enquiry into the factual aspects of the controversy and without framing a distinctive issue in this regard. The scope of scrutiny at the stage of consideration of an application under Order VII, Rule 11 of Civil Procedure Code 1908 is confined only to the averments made in the petition. Thus, the question whether the Court has territorial jurisdiction being mixed question of law and fact cannot be decided by way of an application under Order VII, Rule 11 of the Civil Procedure Code, 1908. {Para 31}

 IN THE HIGH COURT OF ALLAHABAD

First Appeal No. 373 of 2024

Decided On: 15.05.2024

Dheeraj Vs. Chetna Goswami

Hon'ble Judges/Coram:

V.K. Birla and Syed Qamar Hasan Rizvi, JJ.

Author: Syed Qamar Hasan Rizvi, J.

 Citation: 2024:AHC:87786-DB, MANU/UP/1908/2024

Print Page

Punjab & Haryana HC: Jurisdiction of district court under S 9 of guardian and wards Act is mixed question of law and fact

 It is evident from a bare reading of the above that the solitary test for determining the jurisdiction of the court under Section 9 of the Act is the 'ordinary residence' of the minor. The expression used is "Where the minor ordinarily resides". Now whether the minor is ordinarily residing at a given place is primarily a question of intention which in turn is a question of fact. It may at best be a mixed question of law and fact, but unless the jurisdictional facts are admitted, it can never be a pure question of law, capable of being answered without an enquiry into the factual aspects of the controversy. The factual aspects relevant to the question of jurisdiction are not admitted in the instant case. There are serious disputes on those aspects to which we shall presently refer. {Para 14}

 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

CR No. 3925 of 2024 (O&M)

Decided On: 07.01.2025

Sulbhi and Ors. Vs. Bhavnesh Kumar

Hon'ble Judges/Coram:

Deepak Gupta, J.

Citation:  MANU/PH/0001/2025,2025PHHC000299.

Print Page

Custody Law Crossroads: Why DV Act Can’t Replace Guardianship Proceedings

 Imagine a mother seeking to take her child abroad for over two years for studies or work—but doing so without the father’s consent and through a petition under the Domestic Violence Act (D.V. Act). Sounds like a tricky situation? The recent court ruling has made it clear why such cases can’t be decided lightly or through interim orders.

What Is Section 21 of the Domestic Violence Act?

Section 21 is all about temporary custody—a quick, protective measure given by a Magistrate to keep a child safe during ongoing domestic violence proceedings. It’s designed to step in fast, not to decide complex long-term custody battles.

Print Page

Important provisions of Guardian and Wards Act 1890

Core Definitions (Section 4)

Minor: Person who has not attained majority under Indian Majority Act 1875

Guardian: Person having care of minor's person, property, or both

Ward: Minor for whom there is a guardian

District Court: Includes High Court exercising ordinary original civil jurisdiction

Court's Power to Appoint Guardians (Section 7)

Print Page

Under which circumstances the legal guardian of muslim minor is competent to sell or . mortgage the property of the minors?

SECTION 108 OF B.R. VERMA'S COMMENTARY ON MOHAMMEDAN LAW:

108. Power of guardian.- A legal guardian shall be entitled to exercise the following powers:

(a) He may sell or mortgage immovable property of the minor in the following cases (but not otherwise)

(i) where he can obtain double the value of the property;

(ii) where it is necessary to do so for the maintenance of the minor, the minor having no other property'

(iii) where debts are due from the deceased person from whom the minor inherits the property or any legacies have to be paid and there are no means of paying them;

(iv) where the expenses exceed the income of the property;

(v) where the property is falling into decay;

(vi) where the property has been usurped and the guardian has reason to fear that there is no chance of fair restitution ;

(vii) where it is to manifest advantage of the minor.

(b) he may borrow money and sell or pledge the movable imperative property of the minor where the necessity, such as, for food, clothing or nursing.

(c) He may carry on business on behalf of the minor if it can be done by ordinary prudence and there is no reason to believe it to be hazardous.

(d) He may enter into any contract on behalf of and for the benefit of the minor.

(e) He may surrender a right or preemption of the minor,

IN THE HIGH COURT OF PUNJAB AND HARYANA

Decided On: 12.05.2009

Gulzar Singh Vs. Julphan and Ors.

Hon'ble Judges/Coram:

Vinod Kumar Sharma, J.

Citation:  Gulzar Singh vs. Julphan and Ors. (12.05.2009 - PHHC) : MANU/PH/0455/.

Print Page

Checklist for District judges of necessary pre- requisite for passing order of sale of immovable property of minor as per provisions of Guardian and wards Act

The district judge must follow a structured procedure and exercise due diligence when considering a petition for the sale of a minor's property under Indian law. This ensures the minor's interests are protected, as mandated by the Hindu Minority and Guardianship Act (HMGA), 1956, and the Guardians and Wards Act (GWA), 1890. Below is the detailed process and precautions:

1. The guardian must file a petition under Section 8(2) of HMGA and Section 29 of GWA, including:

   • Detailed description and valuation of the property.

   • Reasons for the sale (e.g., necessity, financial hardship, or evident advantage to the minor).

   • Plan for utilizing sale proceeds (e.g., education, healthcare, or reinvestment).

Print Page

Bombay HC: An adult member can sell the Minor's undivided interest in joint family property if it is for legal necessity

Hindu Minority and Guardianship Act (1956), Ss.6,8,12 - Minor's undivided interest in joint family property - Sale of minor's share - An adult member can sell the minor's share if it is for legal necessity - S.8 would not be applicable to minor's interest in the joint family property.

So far as Section 6 is concerned, it speaks about the natural guardian of a Hindu minor. However, it specifically excludes a minor's undivided interest in joint family property. Thus, the natural guardian father and, thereafter, the mother cannot be considered as natural guardian in respect of his undivided interest in joint family property. Section 8 lays down the powers of natural guardian. Since section 6 excludes the minor's undivided interest in the joint family property, section 8 also, would not be applicable to the minor's share in the undivided interest in the joint family property. Thus, the provisions of obtaining prior permission by the natural guardian as envisaged under section 8 sub-clause (2) would not arise in respect of a minor's undivided interest in the joint family property. Section 12 of the Act carves out an exception in respect of a minor's undivided interest in the joint family property when it states that the guardian is not to be appointed in respect of his undivided interest in joint family property. It further states that if a minor has an adult member and the property is under the management of the joint family property, no guardian should be appointed for the minor. Thus, an exception is carved out in respect of minor's interest in an undivided joint family property. Thus in view of the said provision an adult member can sell the minor's share if it is for legal necessity. [Para 12]

 IN THE HIGH COURT OF JUDICATURE AT BOMBAY(NAGPUR BENCH)

Vishwanath S/O Bhika Kolase & Anr.Vs.Kisan Mahadeo Bahadure & Ors.

Second Appeal No.241 of 1990

4th April, 2003

Coram: V.M. KANADE, J.

                  Citation: 2003(4) ALL MR 1093.

Print Page

Whether the court should decide child custody dispute in his best interest in preference to his best wishes?

Paragraph 85 of the impugned judgment would reveal that the High Court had enquired about the desire and comfort of the child with respect to his schooling and stay during the interaction. The court found that the child expressed no difficulty in his schooling or his stay in Bengaluru and ultimately satisfied that the child is comfortable and secure with staying with his mother.

16. The child in question is a boy, now around 11 years and a naturalised US citizen with an American passport and his parents viz., the Appellant and Respondent No. 3 are holders of Permanent US Resident Cards. These aspects were not given due attention. So also, the fact that child in question was born in USA on 03.02.2011 and till the year 2020 he was living and studying there, was also not given due weight while considering question of welfare of the child. Merely because he was brought to India by the mother on 03.03.2020 and got him admitted in a school and that he is now feeling comfortable with schooling and stay in Bengaluru could not have been taken as factors for considering the welfare of the boy aged 11 years born and lived nearly for a decade in USA. The very fact that he is a naturalised citizen of US with American passport and on that account he might, in all probability, have good avenues and prospects in the country where he is a citizen. This crucial aspect has not been appreciated at all. In our view, taking into account the entire facts and circumstances and the environment in which the child had born and was brought up for about a decade coupled with the fact that he is a naturalised American citizen, his return to America would be in his best interest. In this case it is also to be noted that on two occasions American courts ordered to return the child to USA. True that the first order to that effect was vacated at the instance of Respondent No. 3. However, taking into account all aspects, we are of the view that it is not a fit case where courts in India should refuse to acknowledge the orders of the US Courts directing return of the minor child to the Appellant keeping in view the best interests of the child. In our view, a consideration on the point of view of the welfare of the child would only support the order for the return of the child to his native country viz., USA. For, the child is a naturalised American citizen with American passport. He has been brought up in the social and culture value milieu of USA and, therefore, accustomed to the lifestyle, language, custom, Rules and regulations of his native country viz., USA. Further, he will have better avenues and prospects if he returns to USA, being a naturalised American citizen.

 IN THE SUPREME COURT OF INDIA

Civil Appeal No. 4987 of 2022 

Decided On: 29.07.2022

Rohith Thammana Gowda Vs. State of Karnataka and Ors.

Hon'ble Judges/Coram:

A.M. Khanwilkar and C.T. Ravikumar, JJ.

Author: C.T. Ravikumar, J.

Citation: MANU/SC/0938/2022.

Print Page

Important provisions of Hindu Minority and Guardianship Act, 1956

2. Act to be supplemental to Act 8 of 1890.—The provisions of this Act shall be in addition to, and not, save as hereinafter expressly provided, in derogation of, the Guardians and Wards Act, 1890.

3. Application of Act.—(1) This Act applies—

(a) to any person who is a Hindu.

(b) to any person who is a Buddhist, Jaina or Sikh by religion, and

(c) to any other person domiciled in territories to which this Act extends who is not a Muslim, Christian, Parsi or Jew by religion, unless it is proved that any such person would not have been governed by the Hindu law or by any custom or usage as part of that law in respect of any of the matters dealt with herein if this Act had not been passed.

Explanation.—The following persons are Hindus, Buddhists, Jainas or Sikhs by religion, as the case may be—

(i) any child, legitimate or illegitimate, both of whose parents are Hindus, Buddhists, Jainas or Sikhs by religion;

(ii) any child, legitimate or illegitimate, one of whose parents is a Hindu, Buddhist, Jaina or Sikh by religion and who is brought up as a member of the tribe, community, group or family to which such parent belongs or belonged; and

(iii) any person who is a convert or re-convert to the Hindu, Buddhist, Jaina or Sikh religion.

(2) Notwithstanding anything contained in sub-section (1), nothing contained in this Act shall apply to the members of any Scheduled Tribe within the meaning of clause (25) of Article 366 of the Constitution unless the Central Government, by notification in the Official Gazette, otherwise directs.

Print Page

What is the difference between provisions of Guardian and wards Act 1890 and Hindu minority and guardianship Act 1956?

 The Guardian and Wards 1890 is a secular act that applies to every citizen and communities of India while Hindu minority and guardianship Act 1956 of 1965 is applicable only to Hindus and subsets of Hindus such as Jains, Buddhists, Sikhs, Lingayat, Arya Samaj, Followers of Brahmo, Followers of Prarthana Samaj, and Virashiva.

Other religious communities such as Muslims, Parsis and Christians do not fall within the scope of this law. This law is added to the Law of Guardians and Wards of 1860 and does not replace the latter. GWA 1890 covers the procedure on how to petition courts for the appointment of a guardian.

Print Page

Important provisions of Guardian and wards Act 1890

 4. Definitions.—In this Act, unless there is something repugnant in the subject or context,—

(1) “minor” means a person who, under the provisions of the Indian Majority Act, 1875 (9 of 1875), is to be deemed not to have attained his majority;

(2) “guardian” means a person having the care of the person of a minor or his property, or of both his person and property;

(3) “ward” means a minor for whose person or property, or both, there is a guardian;

(4) “District Court” has the meaning assigned to that expression in the Code of Civil Procedure (14 of 1882)10, and includes a High Court in the exercise of its ordinary original civil jurisdiction;

7. Power of the Court to make order as to guardianship.—(1) Where the Court is satisfied that is for the welfare of a minor that an order should be made—

(a) appointing a guardian of his person or property, or both, or

(b) declaring a person to be such a guardian,

the court may make an order accordingly.

(2) An order under this section shall imply the removal of any guardian who has not been appointed by will or other instrument or appointed or declared by the Court.

Print Page

Whether purchaser of immovable property is bound to make enquiry whether seller is minor or suffering from legal disability?

 Once it is proved that the plaintiff was a minor at the time of execution of the sale deed, the sale deed cannot be held to be a legal and valid document and is liable to be set aside to the extent of share of the plaintiff. As per law, there cannot be any estoppel against the statute. Once the law provides that a minor cannot enter into a valid contract, the contract, if any, entered into by the minor cannot be held to be legal and valid, using the doctrine of estoppel. The defendant should have been vigilant enough to ascertain that vendor Vikas had attained majority and was not suffering from any legal disability, before entering into the transaction in question with him and his brother.

15. Learned District Judge has referred to the judgment Lakhwinder Singh vs. Miss Paramjit Kaur, MANU/PH/0817/2003 : 2004 (1) LJR 371 (P&H), by this Court wherein it was observed that a transferee must make all reasonable and diligent enquiries regarding the capacity of the transferor and the necessity to alienate the estate of the minor and on satisfying those requirement, he is to enter into and have the sale deed from the guardian or manager of the estate of the minor. It was further observed that under the Guardian and Wards Act, the estate of the minor cannot be alienated unless a specific permission in that behalf is obtained from the District Court. Learned District Judge has observed that no such permission was ever obtained in the instant case by brother of the minor to alienate the share of the minor in the property in dispute. Therefore, sale of the share of the minor respondent, made by his brother vide impugned sale deed Exhibit P-3 is void ab initio and not binding upon the rights of the respondent and sale deed is liable to be set aside to the extent of share of minor plaintiff Vikas.

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

RSA No. 2752 of 2013 (O&M)

Decided On: 31.07.2019

Pearls Dream Palaces Construction (P) Ltd. Vs.  Vikas

Hon'ble Judges/Coram:

Harminder Singh Madaan, J.

Citation: AIR 2019 P &H 164

Print Page

Whether appeal is maintainable against interlocutory order passed by family court under guardian and wards Act?

As discussed above, the coordinate High Courts are of the view

that the plain reading of the provisions of the G & W Act reflect

that an order passed under section 12 of the said act is an

interlocutory order and hence, an appeal is barred by section 47

of the G & W Act.

26. To conclude, the Family Court Act came into force in the year

1984, i.e. 2 years after the pronouncement of Shah Babulal

Khimji (Supra) by the Apex Court. Nowhere was it intended by

the legislature to bring an appeal under Section 19(1) of the

Family Courts against an order passed under Section 12 of the

G & W Act nor does the G & W Act provide for an appeal

against order passed under Section 12 of the G & W Act.

 IN THE HIGH COURT OF DELHI AT NEW DELHI

Judgment pronounced on: 1st October, 2019

 MAT.APP.(F.C.) 211/2017 & CM APPL. 44390/2017

COLONEL RAMESH PAL SINGH Vs SUGHANDHI AGGARWAL

CORAM:

 MR. JUSTICE G.S.SISTANI

 MS. JUSTICE SANGITA DHINGRA SEHGAL

Print Page

Leading Supreme court Judgment on right of mother to act as guardian of minor child during lifetime of father

The expression 'natural guardian' has been defined in Section 4(c) as noticed above to mean any of the guardians as mentioned in Section 6 of the Act of 1956. This section refers to three classes of guardians viz., father, mother, and in the case of a married girl the husband. The father and mother therefore, are natural guardians in terms of the provisions of Section 6 read with Section 4(c). Incidentally it is to be noted that in the matter of interpretation of statute the same meaning ought to be attributed to the same word used by the statute as per the definition section. In the event, the word 'guardian' in the definition section means and implied both the parents, the same meaning ought to be attributed to the word appearing in Section 6(a) and in that perspective mother's right to act as the guardian does not stand obliterated during the lifetime of the father and to read the same on the statute otherwise would tantamount to a violent departure from the legislative intent. Section 6(a) itself recognises that both the father and the mother ought to be treated as natural guardians and the expression 'after' therefore shall have to be read and interpreted in a manner so as not to defeat the true intent of the legislature.

45. Be it noted further, that gender equality is one of the basic principles of our Constitution and in the event the word 'after' is to be read to mean a disqualification of a mother to act as a guardian during the lifetime of the father, the same would definitely run counter to the basic requirement of the constitutional mandate and would lead to a differentiation between male and female. Normal rules of interpretation shall have to bow down to the requirement of the Constitution since the Constitution is supreme and the statute shall have to be in accordance therewith and not de hors the same. The father by reason of a dominant personality cannot be ascribed to have a preferential right over the mother in the matter of guardianship since both fall within the same category and in that view of the matter the word 'after' shall have to be interpreted in terms of the constitutional safe-guard and guarantee so as to give a proper and effective meaning to the words use.

46. In our opinion the word 'after' shall have to be given a meaning which would subserve the need of the situation viz., welfare of the minor and having due regard to the factum that law courts endeavour to retain the legislation rather than declaring it to be a void, we do feel it expedient to record that the word 'after' does not necessarily mean after the death of the father, on the contrary, it depicts an intent so as to ascribe the meaning thereto as 'in the absence of-be it temporary or otherwise or total apathy of the father towards the child or even inability of the father by reason of ailment or otherwise and it is only in the event of such a meaning being ascribed to the word 'after' as used in Section 6 then and in that event the same would be in accordance with the intent of the legislation viz. welfare of the child.

IN THE SUPREME COURT OF INDIA

W.P. Nos. 489 of 1995 and 1016 of 1991

Decided On: 17.02.1999

Githa Hariharan Vs.Reserve Bank of India and Ors.

Hon'ble Judges/Coram:

Dr. A.S. Anand, CJI., M. Srinivasan and U.C. Banerjee, JJ.

Citation:(1999) 2 SCC 228. 

Print Page

Whether a party can seek modification of child custody order in absence of change of circumstances?

It is contended by the appellant that all custody orders, by their very nature, are temporary and that therefore, they are capable of being modified.

15. We have no doubt that custody orders are only temporary in nature, capable of being modified at any time. But there is a procedure to be followed for modification. Whenever a petition under the Guardians and Wards Act is disposed of finally, the same puts a seal on all questions that arose up to that date. But if there are subsequent developments or changes, which made one party eligible and the other ineligible for custody or guardianship, a fresh main petition may be maintainable. In such an event, the final order passed in the first main petition cannot be treated as res judicata, since the question relating to the interest and welfare of the children is always in a state of flux, depending upon the variation in parameters. Let us take a hypothetical case. If after the disposal of a petition under the Guardians and Wards Act, one of the parents had suffered a disqualification or had undergone some kind of a change in his or her financial or family or mental status, the same would give rise to a fresh cause of action for filing a fresh Original Petition. But it will not give a right to one of the parties to seek a modification of the order passed in the main petition by filing an interlocutory application in the disposed of case.

IN THE HIGH COURT OF JUDICATURE AT HYDERABAD 

F.C.A. No. 189 of 2017

Decided On: 20.04.2018

Ahmed Mohiuddin  Vs. Shabana Yasmeen

Hon'ble Judges/Coram:

V. Ramasubramanian and N. Balayogi, JJ.

Citation: AIR 2018 Hyderabad 150

Print Page