A.M. Bhattacharjee, J.@mdashThe impinged order is one whereby the learned Judge has rejected the application u/s 26, Hindu Marriage Act read with Section 151, CPC filed by the appellant, the quondam husband, against the respondent, the quondam wife, for variation of the order of custody relating to their minor children and has also allowed the application filed by the respondent-wife for enforcement of the earlier order. The learned trial Judge has held that Section 26 of the Hindu Marriage Act could not be invoked for the prayer for variation made in the application. If the application, as held by the learned Judge, could not lie u/s 26, Hindu Marriage Act, then the present appeal also would not be maintainable, as u/s 28 of the Hindu Marriage Act, the only orders which are applicable are non-interim orders relating to custody, maintenance and education, of minor, children u/s 26 and orders of permanent alimony and maintenance in favour of any of the spouses u/s 25. We are, however, afraid that the learned Judge was wrong and that the application was perfectly maintainable u/s 26 and the impugned order, not being an interim one, is accordingly appeal able u/s 28. The appellant and the respondent, while obtaining a decree for divorce by mutual consent u/s 13B of the Hindu Marriage Act, agreed in writing to certain terms and conditions relating to the custody of their children, and accordingly a consent order was passed by the trial court in accordance, with the said terms and conditions. The order, so far material for our purpose, was that the children were to remain under the custody of the appellant-father subject to the conditions that for some days in the week and for some portions of the school vacations and holidays, as specified in the order, they would be sent by the appellant-father to the respondent-mother. For reasons alleged in the application, the appellant-father has now prayed that those conditions requiring him to send the children for some period to the respondent-mother be removed and revoked.
2. The trial Judge does not, as he obviously cannot, dispute that order in matrimonial causes relating to the custody of children can be passed and that the order relating to custody in the divorce case was passed u/s 26 and that any such order can also be revoked, suspended or varied under that Section. But he is inclined to think that by the application, giving rise to this appeal, all that the appellant-father has sought is, no variation, revocation or suspension of the order relating to custody, which is with him and shall remain with him, but only removal or revocation of the conditions requiring him to send the children to the respondent for some specified days or periods. His view is that under the express terms of Section 26, the application would lie only for orders relating to "custody, maintenance and education" of children and for revocation, suspension or variation of "such orders previously made". The learned 3udge has accordingly ruled that since under the previous order made while decreeing divorce, custody of the children has been granted to the appellant-father and he is not seeking for the revocation, suspension or variation of such custody, but only removal of some conditions requiring him to send the children to their mother for certain time or period, Section 26 could not be invoked.
3. As we have already indicated, the view of the learned judge is patently erroneous. When, as in this case, an order of custody has been made in favour of one of the parties, but that order of custody is expressly subjected to certain conditions,'' like sending the children regularly to the other party for some time in every week and also for some period during the vacations or holidays, such conditions are obviously made part of the order of custody u/s 26 and being thus parts of such an order relating to custody, may be varied, suspended or revoked under the express terms of Section 26 and any order granting or refusing to grant such variation, suspension or revocation, if not a merely interim order, would be appelable u/s 28(2).
4. Both the appellant and the respondent, the quondam spouses, have married again. At the time when the divorce was decreed and custody was granted to the appellant-father, it was agreed that such custody would be subject to the condition that the appellant-father would send the children every week from the school to the house of the father of the respondent-mother, where she was then residing. It is not disputed that the respondent-mother has married again and is now residing in her new matrimonial home with her second husband and not in her father''s house where the children, were agreed to be sent according to the tern of the Order. It is the appellant''s case that the father of the respondent is also no longer residing there but is staying mainly in Delhi for professional purposes and that on several occasions, the children after being sent there had to come back finding no one to receive them and the residential portion of the respondent''s father being under lock and key. The appellant accordingly has prayed for a variation of the earlier order by removing therefrom the conditions requiring him to send the children to the mother on several grounds set out in his application which briefly are as hereunder The respondent is no longer residing in her parent''s house but in her new matrimonial home and her parents are also no longer available at their place of residence to receive the children. The respondent developed extra-martial intimacy with her second husband even during the continuance of her first marriage with the appellant and she thus "having no respect for marriage and social life", the children, particularly the minor grown up daughter, should not be allowed to live in her company The respondent also used to antagonise the children against the appellant while they used to live with her and they were found "to be unmindful in their studies for a few days" on their return.
5. To the trial Judge none of these grounds appeared to justify any variation of the earlier order whereunder the appellant is required to provide the respondent with the access to her children in the manner agreed. Since, for reasons stated hereinbelow, we have decided to send the case back on remand to the Court below, we do not propose to express our views on this aspect. A mother, however, does not cease to be a mother qua her children on her re-mariage and even in the earlier Hindu Law of Marriage, whereunder re-marriage of a woman was thought, though wrongly, to be impermissible. it has been made clear for more than a century since the Hindu Widows Re-marriage Act of 1856, that a widow mother, even on and after her remarriage, remains, as she can not but, the mother of her children by her former deceased husband enjoying all the rights as such, including the right to inherit the properties of such children as their mother. As the law now stands after the Hindu Marriage Act of 1955 and Hindu Succession Act of 1956, the mother is and would remain a preferential heir to the children superseding her former husband, the lather of the children, even on her divorce from the former and remarriage with another. Under the Hindu Minority and Guardianship Act and the Hindu Adoption and Maintenance Act of 1956, a re-married mother does not lose her right to guardianship and custody of her children or to give any of them in adoption solely on the ground of her remarriage. The learned Judge was, therefore, right in excluding from his consideration the facts of remarriarge of the respondent-mother or the appellant-father and while passing his order after remand, he is not to take into consideration the facts of remarriage, unless he finds that such marriages have, in fact, brought about such changes of circumstances as a result whereof, denial of acess of the respondent-mother to her children would be (to borrow from Section 25 of the Guardians and Wards Act, 1890) "for the welfare" of the children. As we have recently pointed out in Raj Kumar v. Barbara (1989-1 Calcutta Law Journal 195), it must, as it can not but, be accepted as a settled law in this jurisdiction relating to guardianship and custody of children that, under whichever law or enactment the jurisdiction is invoked, be it the matrimonial enactments governing the various communities, as in this case, or the Hindu Minority and Guardianship Act or the Guardians and Wards Act. all questions relating to the custody of a minor must be decided solely and only from the point of view of the welfare of the minor and the decision of the Supreme Court in
6. It appears that the Court which passed the original order in (sic)whereof has now been sought for by the appellant-father, passed it simply and solely on the basis of the terms agreed to by the combating spouses and no attempt appears to have been made to ascertain the wishes of the children, though the minor daughter and the minor son were then aged about 11 years and 7 years respectively. Children are not chattels owned by the parents and when the parents fall out and fight out matrimonial proceedings with acrimonious bellicosity, the children are not to be consigned or dumped or shunted or shuttled merely according to the terms agreed to by those combatant spouses.
7. When the impugned order was passed in 1987 rejecting the prayer of the appellant-father for variation of the earlier order, the daughter and the son were aged about 13 and 9 years respectively. The appellant-father, while praying for variation of the earlier order, and the respondent-mother while resisting such prayer for variation and applying for strict enforcement of the earlier original order, having hurled so many vituperative allegations against each other, the learned Judge ought to have endeavoured to ascertain the wishes of the children before deciding as to whether deprival of the respondent-mother of her access to the children in accordance with the terms of the original order, would or would not have been for the welfare of the children.
8. We would accordingly allow the appeal, set aside the impugned order and send the case back to the trial Court for retrial on the materials on record and such further relevant materials as may hereafter be produced by the parties and after ascertaining and considering the wishes of the minor children as to the respondent-mother''s having access to them, whether in the manner directed in the original order or otherwise as the Court may deem fit and proper. We, however, make it clear that if the trial Court, after such consideration afresh on remand, does not think it just and proper to vary or alter the earlier order, it would be right for it to direct, as it did in the impugned order, the respondent-mother to ensure that she should keep herself present to receive the children and to be physically with them "during the period when they would be staying with her.
9. The appeal is thus allowed, the impugned order dated 24/6/87 is set aside and the case is sent back to the trial Court for retrial according to law and in accordance with the directions given hereinbefore. The parties are directed to appear before the Court below on 21/3/1989 for the purpose of receiving directions of that Court as to the further proceeding and the trial Court is directed to make every endeavour to dispose of the proceeding latest within August, 1989. No order as to costs. Record called for from Judgment to go down at once.
Pabitra Kumar Banerjee, J.
I agree.
