The most important post divorce problem is the problem of finding out the adequate solution to matters concerning custody, education, maintenance and access to children born out of the said lawful wedlock. The Act provides for the order of custody, etc. in respect of children, the marriage of whose parents is subject to proceedings.

In making order for custody of children, etc. the court takes into account the welfare of child and the welfare of child only. However, the court takes into account the following:

(a) Welfare of child

(b) Wishes of parents

ADVERTISEMENTS:

(c) Wishes of child &

(d) Age and sex of the child

In considering the question of custody of a minor, the Court has to be guided by the only consideration of the welfare of the minor. It is true that Section 49 or for that reason any other section in the Act does not cast upon the court any duty to see the minor and to ascertain his wishes. However, there cannot be any doubt as to the courts’ power of interviewing any minor for ascertaining his wishes if the court considers it so necessary for his own satisfaction. The Calcutta High Court has taken a view that it cannot be said that the husband has any absolute or overriding right in the matter of custody against his wife. The Calcutta High Court granted custody to the father after passing the decree of judicial separation. The mother moved the matrimonial court for direction that her minor should be educated in a particular school. But the father wanted to have the son educated in some other school. Right of the father to make plan for future education being implied in right to have custody, the court declined to interfere with the decision of father as it was not against the welfare of the son in that particular case.

Section 49 of the Act lays down that:

ADVERTISEMENTS:

1. The Suit should have been filed under this Act.

2. It can be Suit for any purpose but under the Act.

3. The Court has powers to pass Order from time to time. It means that it is not that once the Order is passed, it acquires finality and the Court, which passed it cannot review it or modify or alter vary or pass altogether a different order.

4. The Order passed from time to time will be interim Orders.

ADVERTISEMENTS:

5. The Court can also make such provisions (as it may deem just and proper in the light of interim orders passed by it earlier) in the final decree.

6. The said Orders should be in respect of (i) custody (ii) maintenance and (iii) education of children.

7. The age of minority being the age below 18 years, the children in respect of whom the Court should pass the Order should be under the age of eighteen years.

8. The Court can pass the Order in respect of only those children, the marriage of whose parents is the subject matter of Suit pending in the Court for hearing and final disposal.

ADVERTISEMENTS:

9. The Court can pass the Order in respect of such children even after the final decree is passed in the Suit in respect of parents whose marriage was the subject matter before the Court.

10. The Court thus upon an Application has power to pass the Orders while the Suit is pending as well as after the Suit is finally disposed of.

11. The Court can pass Orders whereby the earlier Order made by it is varied, revoked, suspended or it can make a fresh new Order. It can be done from time to time.

12. The Order which is varied, revoked, suspended or a fresh new order is passed, should be in respect of (1) custody, (2) maintenance and (3) education of such children.

ADVERTISEMENTS:

13. The varied, revoked or Suspended Order or the fresh new Order passed by the Court can be by way of final Decree/Order or Order of interim Relief in the Suit pending before the Court.

The Parsi Act was amended and whereby, a proviso is added. By proviso, the Legislatures have expedited the hearing of applications in respect of custody, education and maintenance of children. It is provided in the proviso to Section 49 of the Act that application for maintenance and education should, as far as possible, be disposed of within sixty days from the date of service of notice on the respondent.

Settlement of wife’s property for benefit of children

Section 50 of the Act lays down that in case the Court grants decree of divorce or judicial separation on the ground of adultery of wife, the Court can pass appropriate order to protect the interest of children. Undoubtedly, the Court can create the settlement of property, only if it appears to the Court that wife is entitled to any property. Such property may be in the possession or reversion of wife.

ADVERTISEMENTS:

Thus, if it appears to the Court that there is some property either in possession or reversion of wife, the Court has powers under Section 50 to settle such property for the benefit of the children of the marriage. Such settlement may be for all the children of marriage or any of them. The entire property cannot be settled but not exceeding one half of the property in question. Needless to state that once the property is so settled by the Court, wife cannot deal with or dispose it off. The property then belongs to children or any of them in whose favour the Court has created the Settlement.

Case laws

1. Family Settlement is treated different from common Settlements. Family Settlements generally meets with the approval of courts. These are governed by a special equity principles where the terms are fair and benefits to all the well-being of the family. Technical consideration (like limit) etc. should give way to peace and harmony.

2. Family Court was enacted to provide for the establishment of family court with a view to promote conciliation and secure speedy settlement of dispute relief to marriage and family affairs. Family courts cannot be equated with the courts constituted under the Consumer Protection Act. However, it is subordinate to High Court.

3. The Family Courts established under the Family Courts Act, 1984 are given the exclusive jurisdiction in respect of matrimonial cases. However, the matrimonial cases of Parsi are not covered under the Family Courts and continue to vest with the High Court, being the Chief Matrimonial Court in Presidency town of Bombay (now Mumbai).

4. The phrase “property presented at or about the time of marriage” includes not only the property given at the time of marriage but also before the marriage or after the marriage, if it is relatable to the marriage. It is an alternative remedy available to wife so that she can get too included in the final decree.

5. Wife was driven out from her matrimonial home. Thereafter, the husband obtained the decree of judicial separation and on that basis, he sought divorce. It was held to be a misconduct of the husband, which will disentitle him to seek the divorce from the Court.

6. During pendency of appeal before Supreme Court, the parties arrived at a settlement for divorce by consent. Court treated the memorandum of settlement as application for divorce by mutual consents and transmitted the proceeding to the family Court to proceed for Divorce by Consent.

7. Husband at Chandigarh filed the divorce petition. At the instance of wife, the case was transferred to Delhi.

8. If the Court is vested with the authority to decide a matter, the Court can exercise such a jurisdiction by deciding the matter in favour of or against a person.

9. If parties are Parsis and if marriage was solemnized at Bombay, even if the husband has migrated to England, the Bombay Court and not the London Court will have the jurisdiction in the matrimonial matters.

10.The allegation of leaving of matrimonial home by wife should not be accepted without corroborated testimony.

11.Mother’s right of custody of child is not lost on her remarriage.

12.In case of conflict with personal law, provisions of Guardians and Wards Act, 1890 will prevail. The High Court can also follow the High Court Rules framed under the said enactment.

13.Merely because a child is brought to Mumbai, the Bombay Court does not get the jurisdiction.

14.The sanction of Court for compromise is not necessary but Court should satisfy itself about the compromise.

15.The child categorically stated that he wants to live with father. Custody was given to father.

16.Husband and wife, both are liable to maintain the child. Husband was directed to pay 2000/- and wife Rs. 1000/- per month each.

17.The USA Court had granted custody of children to husband but it was held that it was not proper to direct the appellant mother to hand over the custody of children to husband and allow him take them to USA.