I am husband in two connected matters at Alipore judges court Kolkata. Wife filed divorce case in 2017 and then MISC (alimony pendante lite) in 10th ADJ and then in 2019 Misc. Case (U/S 36 of Special Marriage Act i.e. SMA) in same court. The MISC case was undecided since 7 years however last week (Aug-2026) the Court directed me to pay ₹30,000 per month for the two minor children from the date of filing. Wife was held not entitled to maintenance because she is gainfully employed. ACT VIII Case (Guardians & Wards Act U/S 25 and 12) before 12th ADJ in 2017. In April-2026 I filed a detailed Interim Parenting Plan application under the Calcutta High Court Child Access & Custody Guidelines 2025 and also requested to take over all financial/pecuniary aspects of the 2 children. I have proposed 15 days with each parent, continued dual medical insurance (already paid for years), direct payment of school fees, and monthly in-kind delivery of essentials using corporate discounts. I stay within 500 metres of wife's house. By order dated Sep-2025 in WPA (P) 166 of 2022 Calcutta HC made guidelines binding till rules are framed and Guidelines were notified & circulated to all District Judges by emails “for compliance” and this was informed to me via RTI from HC. The Parenting Plan & the Guidelines were not placed before the maintenance judgment by advocate. Questions: 1) I am considering review of the order in same court as first remedy as it is non-compliance of binding HC guidelines. Unless the operation of the impugned order is stayed, the husband will suffer irretrievable prejudice by being compelled to pay large sums (~24 lakhs retrospectively) under an order passed in violation of binding HC directions. Such payments, once made, cannot be recovered, causing permanent injustice (especially when kids stay with me for 15 days per month. So this order creates irreversible financial prejudice that no subsequent order can remedy). 2) Can I say the order was passed per incuriam & error on face on the grounds that the binding Guidelines were not considered & go for review & stay of the order? If yes, under which sections. 3) Can I say Jurisdictional overlap — The 12th ADJ is already seized of ACT‑VIII Case (with Parenting Plan). Child support is not an isolated obligation but part of custody/welfare. Continuing parallel proceedings is totally incorrect. 4) Can I argue on procedural efficiency/public policy — Multiplicity of proceedings is against judicial policy. Transfer/recall/stay ensures consolidation in the specialized forum. 5) Can I argue that Guidelines as public policy: The HC Guidelines are binding directions, not mere suggestions. 6) Can I argue Fragmented adjudication defeats the purpose guidelines & is prejudice to the minor children through inconsistent court orders. 7) Sec-36 of SMA is only for wife. Can court grant maintenance for kids ? 8) What else objections & remedies do I have ? Kindly advise remedy with section numbers.
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1. You may file a Review Application before the 10th ADJ alongside an Application for Stay of Operation of the order and can ar4gue based on the Supreme Court judgment in Rajnesh v. Neha (2021), which states that arrears should not be granted mechanically from the date of application if it causes oppressive financial burden, and the court must adjust/deduct payments made in-kind or direct educational expenses.
2. You are right that per incuriam applies to binding judicial precedents/statutes ignored by a co-coordinate or higher court, but in a trial/district court, non-compliance with mandatory High Court circulars/guidelines amounts to a jurisdictional error and ground for Review. Therefore an order passed in ignorance of binding judicial directions issued by the jurisdictional High Court (WPA (P) 166 of 2022 under Article 226/227) may be deemed as an "error apparent on the face of the record.
3. You can carefully plead the concept of jurisdictional overlap because under Section 38 of the Special Marriage Act (SMA) governs custody, maintenance, and education of children during matrimonial proceedings. If the 12th ADJ is already adjudicating custody under Section 25/12 of the Guardians & Wards Act (GWA) along with an active Parenting Plan, parallel fixing of unadjusted cash maintenance without reference to the custody schedule causes conflicting determinations.
4. You can pray for consolidation/transfer of the matrimonial suit/maintenance aspect to the court handling the GWA case to prevent contradicting orders and argue that multiplicity of proceedings on identical issues (child support vs. custody sharing) is contrary to public policy.
5. You can argue that ignoring mandatory procedural requirements (such as the HC Child Access & Custody Guidelines 2025 filing requirements) violates procedural natural justice.
6. You can argue that fragmented adjudication leads to unjust enrichment of one parent and starves the actual child welfare infrastructure. Child support cannot be treated merely as a monetary payment to the mother when the father provides direct physical care for 15 days, pays school fees, and provides health insurance.
7. If the order was passed strictly under an application named "Section 36 SMA" and awarded child maintenance without invocation/recourse to Section 38 SMA or Section 26 HMA principles, it suffers from a structural defect.
8. You may file a Review petition and an application for Stay (Order 47 Rule 1 and Sec 151 CPC) and highlight Non-consideration of standard direct expense, Misapplication of Section 36 SMA (which is for wife only) for child maintenance without following Section 38 SMA guidelines, 50% shared physical custody arrangement. If the Trial Court refuses a stay or rejects the review, file a Revision (C.O.) before the High Court, invoking non-compliance with WPA (P) 166 of 2022 guidelines.
Review Application in the 10th Additional District Judge (ADJ) Court under Section 114 read with Order 47 Rule 1 of the CPC is legally maintainable. It can be argued on the grounds of "error apparent on the face of the record"because the court completely overlooked the binding statutory commands of the Calcutta High Court Child Access & Custody Guidelines, 2025 (notified via WPA (P) 166 of 2022).
2)However, a review cannot be strictly termed per incuriam since that specific doctrine applies primarily to higher appellate courts disregarding their own binding precedents or statutes, rather than a subordinate court's factual/legal oversight
3) To prevent irretrievable prejudice from an immediate ~₹24 lakh retrospective liability, you must simultaneously file a Stay Application. If the Alipore Court refuses a stay or rejects the review, your next swift remedy is a Revisional Application before the Calcutta High Court under Article 227 of the Constitution of India
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