1979 (2) TMI 207 - HC - Indian Laws

Court rejects application to set aside custody consent order emphasizing parental compromises

Manjula D. Boral Versus Dilip Jyoti Prakash Boral

The court rejected the respondent's application to set aside the consent order for custody of minor children, emphasizing that court sanction is not ... - Issues:Petition for custody of minor children under the Guardians and Wards Act, 1890; Validity of consent terms in custody matters involving minors; Application to set aside consent terms; Requirement of court sanction for compromise involving minors; Status of custody orders as orders in rem; Grounds for setting aside consent orders.Analysis:The judgment pertains to a petition filed by the mother seeking custody of her two minor children under the Guardians and Wards Act, 1890. The mother had initially rejected settlement offers made by the father but later agreed to the terms. The consent terms were reduced to writing and signed by both parties in court. However, after a brief period, the father's counsel expressed that the father felt pressurized into signing the consent terms and requested their cancellation. The court had to determine whether it had the authority to set aside the order based on the father's request.The respondent argued that in cases involving minors, a consent decree or order should only be granted if it is deemed beneficial for the minor, as per Order 23, Rule 3 and Order 32, Rule 7 of the Civil Procedure Code. The respondent contended that without the express sanction of the court, the compromise should be set aside. However, the court noted that the requirement of express court sanction under Order 32, Rule 7 applies to cases where the minor is a party to the suit, not in disputes between parents over custody. The court emphasized that while ensuring the welfare of the minors is crucial, no explicit court sanction is necessary for such compromises.Moreover, the respondent argued that orders affecting a party's status, such as probate or matrimonial proceedings, require independent judicial scrutiny rather than relying solely on parties' wishes. The court disagreed, stating that custody orders are not orders in rem and are subject to revision based on changing circumstances. The court highlighted that parties can reach consent arrangements regarding custody, a common practice in such matters.The judge, having reviewed the consent terms and ensuring they were in the minors' best interest, held that setting aside the order would require valid grounds akin to an agreement's invalidation. Since no such grounds were presented, the court rejected the respondent's application to cancel the consent order. Additionally, the respondent's request for a stay on the operation of the consent order was granted until a specified date.In conclusion, the judgment clarifies the requirements for consent orders in custody matters involving minors, emphasizing the court's role in safeguarding the minors' welfare while recognizing the autonomy of parents in reaching custody arrangements through consent.