Punjab and Haryana High Court: Custody orders dynamic, open to scrutiny any time

Saurabh Malik

Chandigarh, October 5

In a significant ruling, a Division Bench of the Punjab and Haryana High Court has made it clear that guardianship or custody orders for minor children are not permanent or final and can be subjected to scrutiny at any time. The court can modify the orders if changed circumstances, including passage of time, so warrant.

“With the changed conditions and circumstances, including the passage of time, the court is entitled to vary such orders if such variation is considered to be in the interest of the welfare of the wards…. Orders relating to custody of wards, even when based on consent, are liable to be varied by the court, if the welfare of the wards demands variation,” the Division Bench of Justice Raj Mohan Singh and Justice Harpreet Singh Brar asserted.

The ruling came on an appeal filed by a father against a family court order, whereby respondent-wife’s application for the minor’s interim custody was allowed. Justice Brar referred to a plethora of Supreme Court judgments before making it clear that the guardianship orders were required to be perceived as temporary measures, crafted after taking into consideration the prevailing circumstances.

The judgment is significant as it also allows any genuinely concerned party, including the uninvolved parent, to challenge the custody orders, if the minor’s well-being was in peril. The uninvolved parent was, rather, not precluded from approaching the guardian court for quashing, varying or modifying its orders in case the child’s best interests so indicated.

Justice Brar also ruled that appeal did not lie before the high court against interlocutory order passed by the family court under Section 12 of the Guardians and Wards Act-1890, whereby the minor’s interim custody was granted to the respondent-mother represented in the case by advocate Shivansh Malik.

Minor’s welfare paramount

It is not the right of the father or mother that would require adjudication while deciding custody petition, but it is the welfare of the minor alone which is the paramount consideration. — Division Bench