Delhi High Court: Hearing a child custody proceeding during which an interesting question arose for consideration, the Court observed that a spouse seeking custody of children under Section 25 of the Guardians and Wards Act, and obtaining interim orders cannot be allowed to withdraw from the proceedings and yet continue to take the benefit of the interim orders. If such a scenario occurs, then the other spouse can seek to be transposed as the petitioner.
The respondent mother had filed a petition to be declared the sole guardian of her son and daughter, upon which interim order granting her custody was passed by the Family Court. On the strength of the same, she removed the children from their school in Gurgaon and got them admitted to a school in Dehradun. After the issues were settled, thereafter she moved an application to withdraw the petition filed. This was opposed by the appellant on the ground that having taken advantage of the interim orders, she could not simply walk out. The Family Court allowed her to withdraw the petition. The Court found from the documents filed that on the strength of the interim orders, the respondent had written to the school authorities to ensure that the appellant was not given any accesss to the children without her permission, during the pendency of the guardianship proceedings.
The Division Bench of Pradeep Nandrajog and Pratibha Rani, JJ observed that 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.
Allowing the appeal, the Court directed the restoration of the guardianship petition before the Family Court and the respondent to be transposed as a respondent therein. The interim orders obtained by the respondent were declared to have lapsed and on the strength thereof the respondent cannot assert any right. Concerning visitation by the appellant to meet his children in the boarding school, the Family Court was directed to pass appropriate orders after serving the respondent and interacting with the children. [Someshwar Dayal v. Anupama Dayal, 2016 SCC OnLine Del 4585, decided on August 17, 2016]

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