Mother's Non-Appearance In Pending Custody Suit Cannot Be Ground To Seek Modification Under Section 151 CPC: Jharkhand High Court
The Jharkhand HC has held that the alleged non-appearance of a party in a pending guardianship proceeding cannot be made a ground for seeking clarification or modification of an earlier order under Section 151 CPC, as it is for the concerned trial court to deal with the non-appearance in accordance with law.
A Division Bench of Justice Sujit Narayan Prasad and Justice Sanjay Prasad was hearing an application filed by the respondent-husband seeking clarification and modification of the Court's earlier order dated 15.05.2026, whereby interim custody of the minor daughter had been handed over to the appellant-mother with a direction for expeditious disposal of the pending guardianship proceeding.
The parties were married on 22.01.2017 and their daughter was born on 18.07.2021. The child had been residing in Ranchi since her birth. Following matrimonial disputes, the mother had initially instituted Guardianship Case No. 09/2024 before the Family Court, Chapra, Bihar. The case was dismissed on 05.03.2025 on the issue of territorial jurisdiction under Section 9 of the Guardians and Wards Act, 1890.
Thereafter, she instituted Guardianship Case No. 250 of 2025 before the Family Court, Ranchi, seeking custody of the minor child. During the pendency of the proceedings, she also sought interim custody under Section 12 of the Guardians and Wards Act, 1890. The Family Court had initially granted her visitation rights.
The mother thereafter challenged that order before the High Court. By order dated 15.05.2026, the High Court set aside the Family Court's order and allowed the mother's application for interim custody, while directing expeditious disposal of the guardianship proceedings without being prejudiced by the High Court's order.
The father subsequently approached the High Court under Section 151 CPC, contending that the mother was not appearing in the pending guardianship proceedings and was allegedly taking advantage of the observation in the High Court's order that the interim custody would depend upon the final outcome of the suit.
The Court rejected this contention. It held:
“So far as the issue of non-appearance of the appellant-mother, the opp. party herein in the suit being Original Suit No. 250 of 2025 is concerned, the same is not fit to be considered in a petition filed under Section 151 CPC due to the reason that if either of the party is not appearing in the pending proceeding, it is up-to the Court concerned to take the decision in accordance with law.”
The Court further noted that, in the guise of raising the issue of the mother's alleged non-participation, the petitioner was effectively seeking clarification of the earlier order. An earlier Civil Miscellaneous Petition, CMP No. 597 of 2026, had also been filed and subsequently withdrawn.
The petitioner also sought a specific time-frame for conclusion of the pending guardianship proceedings. The Court declined this request, noting that its earlier order dated 15.05.2026 had already directed the Family Court to decide the suit expeditiously and without granting unnecessary adjournments. The said order had also not been interfered with by the Supreme Court.
The Bench further relied upon the Supreme Court's decision in High Court Bar Association, Allahabad v. State of Uttar Pradesh & Ors., (2024) 6 SCC 267, observing that Constitutional Courts should ordinarily refrain from fixing a time-bound schedule for disposal of cases pending before other courts.
The Court accordingly held that the present petition, filed in the guise of seeking modification of the earlier order, was not tenable and dismissed it.
Appearance:
For the Petitioner: Mr. Rohit Sinha, Advocate; Md. Imran Hassan, Advocate; Mr. Vijay Shankar, Advocate; Mr. Paritosh Rai, Advocate
For the Respondent: None