Delhi High Court answering an ‘interesting question’ about ‘child custody’ proceedings, has held that a spouse who seeks custody of the children by moving a petition under Section 25 of the Guardians and Wards Act and obtains interim orders cannot withdraw the proceedings and continue to take benefit of the interim orders. In such an event, the Court held, that the other spouse can seek to be transposed as the petitioner.
In the instant case, mother had filed a petition under the Guardians and Wards Act seeking a declaration to be declared the sole guardian of her children and interim order of custody was granted in her favour by the family Court. Later she filed an application to withdraw the proceedings which was opposed by the father pleading that having taken advantage of interim orders passed in the petition the mother cannot simply walk out. The Court however, allowed the application to withdraw proceedings.
The High Court restoring the petition on the file of Family Court, held: “an issue concerning appointment of a guardian focuses on the welfare of the child. The warring couple are not the parties affected. They may be parties interested. The affected party is the child. Thus, where one spouse files an application to be appointed as a guardian of the child which is opposed by the other and if the interim custody of the child is with the petitioner spouse, if the petitioner spouse seeks to withdraw the petition the respondent spouse can seek transposition, for the reason having taken advantage of interim orders the petitioner spouse cannot thumb the nose at the respondent spouse.”
Read the Judgment here.