Patently illegal to allow visitation, custody in plea for restitution of conjugal rights: Supreme Court

The Supreme Court recently ruled that rights of visitation and/or temporary custody of child cannot be granted in an application seeking restitution of conjugal rights under the Hindu Marriage Act [Priyanka vs Santosh Kumar].A bench of Justices Surya Kant and JK Maheshwari noted that it was 'constrained' to invoke powers under Article 142 to set aside a family court decree that had granted child visitation rights while hearing a plea under Section 9 of the Hindu Marriage Act. "The respondent (husband) should have filed a separate and independent petition under Section 26 of the Hindu Marriage Act, 1955, instead of securing an order in the proceedings pending under Section 9 of the Act. The order dated June 3, 2019 giving visitation rights or temporary custody of the child to the respondent (husband) is, thus, patently illegal," the Court held. .The top court was hearing a transfer petition filed by a wife requesting that a case filed by her husband for restitution of conjugal rights be transferred from the family court at Puducherry to that in Bengaluru. The family court in Puducherry had heard her plea ex-parte and given the respondent-father visitation rights and temporary custody. The top court in its order noted that the same was done without considering the fact that it would have been difficult for the mother to travel to Puducherry from Bengaluru while leaving their 7-year-old son at home. This denied her a chance of a fair trial, the judges said, observing, "The plea now taken before us is that since Section 9 Petition of the Act, sought to be transferred by the petitioner (wife) has already been decided, the instant Transfer Petition has become infructuous. We are not impressed by this contention."Section 9 of the Hindu Marriage Act provides for the process for restitution of conjugal rights, while Section 26 deals with the visitation rights of parents. The top court noted that an application to set aside the ex-parte order was pending, and allowed the transfer petition. However, the respondent-husband was given liberty to file a separate petition under Section 26, which has to be decided on its own merits by the Bengaluru Family Court after hearing both sides in accordance with law. "Before parting with this matter, we make it clear that we have not expressed any opinion on the merits of the case, except to set aside the order dated June 3, 2019, which in our considered view, could not have been passed by the family court at Puducherry by entertaining an interim application," the Court said.Advocates Shanthakumar Mahale, Rajesh Mahale, and A Sharma appeared for the wife. Advocate TV Ratnam represented the husband. [Read order]