SANDEEP NARESH BHATIAversusVANITA RAJKUMAR ASWANI

                                                                     901-IA-7642-2025.docx

     rrpillai                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                       CIVIL APPELLATE JURISDICTION
                                   INTERIM APPLICATION NO. 7642 OF 2025
                                                    IN
                             MISCELLANEOUS CIVIL APPLICATION NO. 20 OF 2021


                        Sandeep Naresh Bhatia                   …     Applicant
                               Vs.
                        Vanita Rajkumar Aswani                  …     Respondent


                        Mr. Subhash Jha for the Applicant.
                        Mr. Atharva S. Jagtap a/w. Ms. Siddhi Bhosale for the
                        Respondent.
                                                     CORAM : GAURI GODSE, J.

                                                     DATE :     28th AUGUST 2026

                        ORDER :


                        1.     This application is filed by the original respondent in a

                        disposed of Miscellaneous Civil Application No. 20 of 2021. The

                        said application was filed by the respondent under Section 24

                        of the Code of Civil Procedure, 1908 (“CPC”) for transfer of

                        Marriage Petition No. 80 of 2020, filed by the present applicant

                        in the Court of the Civil Judge, Senior Division, Kalyan, to the

                        Family Court at Pune. In this miscellaneous civil application,

                        the parties agreed to amicably resolve the dispute and consent

                        terms dated 28th April 2022 were filed. The miscellaneous civil
           Digitally
           signed by
           RAJESHWARI
RAJESHWARI RAMESH
RAMESH     PILLAI
                        application was disposed of in terms of the consent terms.
PILLAI     Date:
           2026.09.01
           20:01:46
           +0530
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2.    The parties had agreed that the permanent custody of the

minor child would remain with the applicant, i.e., the father, and

the respondent, i.e., the mother, was granted the right of

visitation and access on weekends and during summer, Diwali,

and Christmas holidays. In view of the agreed terms and

conditions, the marriage petition filed by the present applicant

was converted into a petition for dissolution of the marriage by

mutual consent. Accordingly, by judgment and decree dated

24th August 2022, the Civil Court at Kalyan allowed the

marriage petition by dissolving the marriage by mutual consent

under Section 13(B) of the Hindu Marriage Act, 1955.


3.    The applicant had filed an application under the Guardian

and Wards Act, 1890 (“Guardian and Wards Act”) which he had

agreed to withdraw in view of the consent terms. Hence, in

view of the consent terms, the marriage petition is disposed of,

and the application filed under the Guardian and Wards Act is

withdrawn.


4.    By this application, the father seeks modification of

certain terms of the consent terms regarding the visitation

rights recorded under clause (11) of the consent terms dated

28th April 2022. The grounds for modification are alleged


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changed circumstances, the child's unwillingness, or the child’s

lack of interest in meeting the mother. Since modification is

sought on the ground of changed circumstances, it was

suggested to the applicant that the appropriate remedy would

be to file such an application in the trial court.


5.     Learned counsel for the respondent-mother agrees that

the correct remedy would be to file an appropriate application

before the trial court. However, learned counsel for the

applicant submits that, in view of the well-settled legal

principles laid down by the Apex Court, the correct remedy to

modify the consent terms would be only before the court that

accepted the consent terms. He submits that relegating the

party to the trial court, which is a subordinate court, would

amount to fiddling with the order passed by this court, which

accepted the consent terms. Hence, according to the learned

counsel for the applicant, the correct remedy is to file an

application before this court.


6.     To support his submissions, learned counsel for the

applicant relies upon the decision of the Apex Court in the case

of Pushpa Devi Bhagat (Dead) through LR Sadhna Rai (Smt)

vs. Rajinder Singh and Others 1. Learned counsel for the
1 (2006) 5 SCC 566

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applicant submits that it is a consistent view taken by the Apex

Court that for modifying the consent terms the application has

to be made before the same court in view of the bar under Rule

3-A of Order XXIII of the CPC. Learned counsel for the

applicant therefore submits that in view of the grounds raised in

the application and the desire expressed by the child, it would

be appropriate that this court modifies the consent terms.


7.    I have perused the papers of the application. The consent

terms are taken on record in the miscellaneous application

which was filed under Section 24 of the CPC for transfer of the

marriage petition. The issue of dissolution of marriage or of

custody and access to the child was never before this court in

the application filed under Section 24 of the CPC. This court

has not expressed any view or adjudicated the issue of child

custody or access or visitation rights of the parties. The bar

under Rule 3-A of Order XXIII of CPC would apply if the

application is filed on a ground that the compromise on which

the decree or order is based was not lawful. In the present

case, there are no allegations that the decree passed pursuant

to the compromise between the parties for the dissolution of the

marriage, or the order for custody, access, and visitation rights,



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was unlawful or not a genuine compromise. Hence, there is no

question of bar under Rule 3-A of Order XXIII of the CPC.


8.   It is a well-settled legal principle that an order for custody,

visitation rights, or access to a minor child is never final and

can always be revisited in accordance with the law. Hence,

even the order of custody, access, or visitation rights agreed

between the parties by consent would be final until it is varied

in accordance with law. Since there is no allegation that the

terms and conditions recorded in the consent terms are

unlawful or not genuine, the bar would not apply.


9.   The decisions relied upon by the learned counsel for the

applicant are irrelevant so far as the present case is concerned.

The grounds raised in the present application pertain to the

child's psychology and to some opinions expressed by

psychologists, which are relied upon by the applicant. Any

allegations made against the party in connection with the

custody or access or visitation rights of either parent cannot be

dealt with solely on the basis of a psychologist's report. The

allegations in the application pertain to events that occurred

after the parties acted on the consent terms. Hence, the prayer

is based purely on subsequent events. The allegations in the


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application cannot be determined without permitting the parties

to lead evidence. The scope of the original application filed

under Section 24 of the CPC cannot be expanded to the extent

of varying the parties’ visitation and access rights. The correct

remedy, therefore, would be to file an appropriate application

before the trial court in accordance with law.

10.    I therefore see no reason to entertain this application.

The application is therefore dismissed.

11.    The applicant is at liberty to file an appropriate application

in the trial court in accordance with law for modification of the

consent terms, as prayed in this application. It is further

clarified that if such an application is filed before the trial court

to vary the terms as prayed in the present application, the

same shall be decided on its own merits in accordance with

law.

12.    It is further clarified that for the reasons recorded above,

the bar under Rule 3-A of Order XXIII of CPC would not apply

to the application, if any, filed in the trial court for modification in

view of the liberty granted by this order. All rival contentions of

the parties on the merits of the proposed application are kept

open to be decided in the appropriate application, if filed by the


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applicant.


13.   It is further clarified that this court has not granted any

interim relief. Hence, the consent terms are binding upon the

parties until modified in accordance with law.




                                            [GAURI GODSE, J.]




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