Have you engaged an advocate or are you handling this case in person?

When you have already an advocate engaged in this case then his point of view on the subject is very important to understand your problem in correct perspective.

Please discuss these issues with him first and then share his view and reasons. 

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

Dear Client,

Your questions are answered in the following pointers’

• Review: You may file a review under Order XLVII Rule 1 read with Section 151, Code of Civil Procedure, 1908, and seek an immediate stay of the ₹24 lakh recovery.
• Error apparent: You may argue that the court failed to consider binding Calcutta High Court Guidelines and the pending Parenting Plan, resulting in an apparent error in the record.
• Section 36, Special Marriage Act: Section 36 mainly concerns the wife's alimony. However, Section 38 does permit for orders regarding maintenance and education of minor children. 
• Parallel proceedings: The 12th Additional District Judge is already handling custody under the Guardians and Wards Act. You may argue that financial and custody arrangements should be coordinated to avoid conflicting orders.
• Guidelines: You may place the 2025 Calcutta High Court Child Access & Custody Guidelines and the relevant High Court order before the court and argue that they were not considered.
• ₹24 lakh arrears: You may challenge the retrospective calculation and seek adjustment for school fees, medical insurance and other expenses already paid by you.

You are advised to consult an advocate before initiating any further legal steps.

Thank you for contacting us, if you have any further queries kindly do not hesitate to contact again. Thankyou.

On the facts stated by you, there is a substantial arguable basis to challenge the August 2026 order, particularly if the order determines the children’s maintenance without considering the pending Guardians and Wards Act proceedings, your Parenting Plan application, and the applicable Child Access & Custody Guidelines. However, I would not frame the entire challenge merely as “the order is per incuriam because the Guidelines were not considered.” The stronger strategy is to combine review/recall or modification before the same court, an application for stay, and, if necessary, a supervisory challenge before the Calcutta High Court.

The first important clarification is regarding the Guidelines. In Antara v. High Court at Calcutta, WPA(P) 166 of 2022, the Division Bench accepted the Guidelines and directed that they be circulated to all District Judges, Family Courts and Magistrates having jurisdiction over matters concerning children. Most importantly, the Court expressly directed that until the Rules are framed and approved, the Guidelines are to be followed.  Therefore, these are materially different from a private set of recommendations or merely persuasive academic guidelines.

That gives you a good argument that the learned trial court ought to have considered the Guidelines where the determination directly affects the welfare, parenting time and financial responsibility of the two minor children. However, I would avoid saying that every maintenance order becomes automatically void merely because the Guidelines were not referred to. The better formulation is that failure to consider a binding framework directly relevant to the welfare and financial arrangements of the children constitutes a material omission, failure to exercise jurisdiction in accordance with law, and potentially an error apparent on the face of the record, particularly where the court was specifically expected to determine the children’s requirements while another competent court was simultaneously considering a detailed parenting arrangement.

There is another important issue which requires careful attention. Section 36 of the Special Marriage Act is expressly concerned with alimony pendente lite payable to the wife. The statutory language refers to the wife having insufficient independent income and permits an order for her support and litigation expenses. Section 38 separately deals with custody of children.  The Supreme Court has also described Section 36 as a provision concerning the wife’s pendente-lite maintenance. 

Therefore, if the impugned order truly purports to award ₹30,000 per month to the children specifically under Section 36 SMA, there is a potentially significant jurisdictional/statutory objection. The precise wording of the order is critical. If the court has merely used Section 36 proceedings as the procedural vehicle but has relied upon some other statutory provision or inherent jurisdiction for child support, the objection will have to be framed differently. But if the order literally says that Section 36 itself authorises an independent maintenance award for the minor children, that deserves serious challenge.

This issue should be separated from the broader proposition that both parents are financially responsible for their children. The fact that Section 36 is limited to the wife does not mean that children cannot receive maintenance. It means that the correct statutory source and procedural vehicle must be identified.

Your second strong point concerns the already pending Guardians and Wards Act proceeding before the 12th ADJ. The existence of that proceeding does not necessarily deprive the 10th ADJ of jurisdiction to deal with a maintenance claim. I would therefore not argue that the maintenance court had no jurisdiction whatsoever merely because the custody case is pending. That would be too broad.

The stronger argument is that the two proceedings substantially overlap in their factual and welfare considerations. Your Parenting Plan allegedly provides for 15 days with each parent, direct payment of school fees, medical insurance and direct provision of essentials. Those matters have a direct bearing upon determining the children’s actual financial requirements and the respective contributions of both parents. The maintenance court therefore ought to have considered the existing custody proceedings and the proposed parenting arrangement before imposing a substantial retrospective monetary liability.

This also brings in the Supreme Court’s decision in Rajnesh v. Neha, where the Court specifically addressed overlapping maintenance jurisdictions and directed disclosure of previous maintenance proceedings/orders so that courts can take existing awards into account and avoid conflicting or duplicative orders. 

That principle can be used carefully in your case. It does not mean that the existence of the Guardianship proceeding automatically bars the Section 36 proceeding. It supports the proposition that courts should avoid fragmented and inconsistent financial orders concerning the same children and should account for the financial obligations already being discharged by either parent.

Your proposed Parenting Plan is therefore important evidence. If you have already been paying the children’s school fees, medical insurance, medical expenses or other necessities, those payments should be meticulously quantified and placed before the court. A monthly cash award should not be calculated in complete isolation from the substantial direct expenditure already being incurred by the father.

The fact that the Parenting Plan was filed in April 2026 but was not placed before the court deciding the maintenance application is particularly important. If this happened because of an omission by your advocate rather than because the court refused to consider it, the review argument should be drafted carefully. You should place the Parenting Plan, the Guidelines and proof of filing/service before the court and explain precisely how their non-consideration materially affected the outcome.

I would structure the challenge approximately as follows:

First, file an application before the same court seeking review/recall/modification of the impugned order, to the extent maintainable. The relevant procedural framework will principally come from Section 114 read with Order XLVII Rule 1 CPC, subject to the exact nature of the order and whether the CPC is applicable to the particular proceeding. Section 40 of the SMA makes the CPC applicable subject to the provisions of the Act. 

The review grounds should be confined to recognised grounds: discovery of new and important matter/evidence which, despite due diligence, was not within knowledge or could not be produced; mistake/error apparent on the face of the record; or another sufficient reason of analogous character. Do not convert the review into a disguised appeal asking the same court to re-appreciate every aspect of the case.

Second, along with the review/application, seek an immediate stay of operation and execution/recovery of the retrospective component of the order pending adjudication. The ₹30,000 monthly liability from 2019 or whatever date is specified creates a very large accumulated liability, and the application should provide a precise calculation rather than simply referring to “₹24 lakh”.

Your stay application should demonstrate:

the approximate retrospective liability;

your existing expenditure on the children;

the children’s actual residence/access arrangement;

the fact that you are seeking substantial shared parenting;

your proximity to the children’s residence;

your medical insurance payments;

school-fee payments;

other direct expenses;

the pendency of the Guardianship proceedings;

the April 2026 Parenting Plan;

the binding status of the Guidelines; and

the possibility of inconsistent orders if both courts proceed independently.

Third, alternatively or simultaneously, depending upon limitation and procedural strategy, consider invoking the supervisory jurisdiction of the Calcutta High Court under Article 227 of the Constitution. If the impugned order suffers from jurisdictional error, failure to consider binding directions, material procedural irregularity or patent illegality, Article 227 may provide a substantially stronger route than attempting to force every objection through review.

The High Court challenge should not be presented merely as “the trial judge forgot to read my Parenting Plan.” It should be framed around jurisdictional/procedural failure and the welfare of the children, supported by the actual order and the Guidelines.

Your argument concerning the Guidelines can be formulated substantially as follows:

The Child Access & Custody Guidelines and Parenting Plan 2025 were not merely placed before the court as persuasive material. The Division Bench of the Hon’ble Calcutta High Court, in WPA(P) 166 of 2022, directed that the Guidelines be followed until the Rules are framed and approved. The Guidelines were thereafter directed to be circulated to the District Judiciary. The pending Guardians and Wards Act proceeding specifically concerns the custody, access and welfare of the same minor children. The applicant had already placed before the competent court a structured Parenting Plan addressing shared parenting, medical expenses, education and direct financial responsibility. The failure to consider this binding framework and the existing custody proceeding while determining the children’s retrospective financial liability has resulted in fragmented adjudication and has materially prejudiced the applicant and, more importantly, risks inconsistent orders concerning the welfare and financial support of the minor children.

The argument about public policy and multiplicity is available, but I would use it as a supporting ground rather than the principal jurisdictional ground. The existence of two proceedings is not automatically illegal. What you need to demonstrate is the actual conflict or potential conflict between the orders.

For example, if the 10th ADJ treats the wife as the sole residential caregiver and calculates ₹30,000 exclusively on that assumption, while the 12th ADJ subsequently orders equal or substantial shared parenting with 15 days per month with you, the factual assumptions underlying the maintenance order could materially change. That is a much stronger argument than simply saying “two courts are hearing two cases.”

There is also a significant point regarding retrospective maintenance. You should examine the exact date from which the court has directed ₹30,000. If the application was filed in 2019 and the order has come only in August 2026, the court’s reasoning for imposing such a substantial retrospective liability should be scrutinised particularly carefully. The court should have considered the children’s actual needs, both parents’ respective incomes/resources, payments already made, educational and medical expenditure and the financial circumstances existing during the relevant period.

The Supreme Court’s principles concerning disclosure and adjustment of maintenance awards in Rajnesh v. Neha are particularly useful here because the objective is to prevent overlapping proceedings from producing duplicative or inconsistent financial burdens. 

I would not, however, argue that the father is entitled to pay only half of every expense simply because he proposes 15 days of custody. Child support is not mechanically divided according to the number of days. The court will look at the children’s welfare, actual needs and the comparative financial capacity of the parents. Your 15-day parenting proposal is nevertheless relevant because it demonstrates that you are seeking direct responsibility for the children rather than attempting to avoid financial responsibility.

You should also be careful about the phrase “take over all financial/pecuniary aspects.” In court, it would be better presented as a willingness to assume direct responsibility for specified expenses—school fees, insurance, medical expenses, educational expenses and agreed recurring necessities—rather than as an attempt to avoid a lawful maintenance obligation.

Finally, I would not make the argument that the Guidelines themselves create a mandatory entitlement to exactly 15 days with each parent. The Guidelines provide a framework for child access and parenting arrangements; the ultimate test remains the welfare and best interests of the particular children. The Guidelines should be used to demand a structured, child-centric adjudication, not as an automatic mathematical entitlement.

My recommended litigation strategy

I would therefore proceed in this sequence:

1. Obtain and scrutinise the certified copy of the entire August 2026 order.

The exact statutory provision invoked by the court for awarding ₹30,000 to the children is crucial.

2. Immediately calculate the retrospective liability.

Prepare a month-wise chart showing the alleged liability, payments already made, school fees paid, insurance premiums, medical expenditure and other direct expenses.

3. File the stay application without waiting for the retrospective amount to become executable.

The prayer should specifically address the retrospective component and, if appropriate, the continuing monthly liability.

4. File the review/recall/modification application before the same court, relying upon the precise review grounds available under Section 114/Order XLVII Rule 1 CPC, subject to maintainability.

5. Place the Calcutta High Court’s 2025 Guidelines and Antara order on record.

The Division Bench expressly directed that the Guidelines be followed until Rules are framed and approved. 

6. Place the April 2026 Parenting Plan and the entire Guardianship proceeding before the maintenance court.

Do not rely merely on a submission that another case exists.

7. Invoke the principles in Rajnesh v. Neha concerning overlapping maintenance proceedings and avoidance of conflicting/duplicative orders. 

8. Separately examine the Section 36 jurisdictional issue.

If the order expressly grants maintenance to the children under Section 36 SMA, this should be one of the first grounds examined because the statutory text of Section 36 is directed to the wife’s alimony pendente lite, while Section 38 separately addresses custody of children. 

9. If review/stay is unsuccessful or the order contains a patent jurisdictional error, move the Calcutta High Court under Article 227, seeking appropriate supervisory/interlocutory relief rather than allowing the retrospective liability to accumulate.

10. In the Guardianship case, press the Parenting Plan independently.

The custody/access case should not be allowed to remain dormant merely because the maintenance proceeding has produced an interim financial order.

One particularly important caution: do not describe the maintenance order as automatically “void” merely because the Guidelines were not considered. That is too absolute. The stronger case is that the court failed to consider a binding framework directly relevant to the children’s welfare, failed to account for the pending custody proceeding and Parenting Plan, potentially exercised the wrong statutory power if Section 36 was used to award maintenance to children, and consequently arrived at an order requiring reconsideration/stay.

The final opinion should be based on the actual August 2026 order, the Section 36 application/reply, the April 2026 Parenting Plan, the orders in the Act VIII proceeding and the precise text of the Guidelines. Without those documents, the above is a legal strategy based on the facts you have provided rather than a definitive opinion on the maintainability or merits of the proposed review.

1. Review and Stay of the Order

Yes, you can seek a review of the maintenance order. An order passed in ignorance of a binding legal provision can be considered an error apparent on the face of the record and is a valid ground for review. You can file a Review Application under Order 47 Rule 1 read with Section 114 of the Civil Procedure Code, 1908 (CPC). The non-consideration of the binding Calcutta High Court Child Access & Custody Guidelines 2025 amounts to an error analogous to one apparent on the face of the record. To prevent irretrievable prejudice, you must also file a separate application for Stay of Operation of the impugned order under Section 151 CPC (inherent powers), since a review petition does not automatically stay execution.

2. Per Incuriam and Error on the Face of the Record

Yes, you can argue that the order was passed per incuriam. When a court disposes of a case without due regard to a provision of law, or when its attention was not invited to a provision of law, it amounts to an error apparent on the face of the record sufficient for review under Order 47 Rule 1 CPC. A judgment rendered in ignorance of the applicable law must be reviewed. The binding Guidelines constitute applicable law, and their non-consideration is a clear error. The review application can be filed under Order 47 Rule 1 and Section 114 CPC.

3. Jurisdictional Overlap

Yes, you can argue jurisdictional overlap. The 12th ADJ is already seized of the ACT‑VIII Case under the Guardians and Wards Act, 1890, where your Parenting Plan is pending. Child support is not an isolated obligation but is intrinsically linked to custody and welfare. The Special Marriage Act does not specifically address child custody, but it does allow for maintenance and support of children under Section 36. However, continuing parallel proceedings in different courts on interconnected issues is procedurally incorrect and can lead to inconsistent orders. You can argue for consolidation in the specialized forum.

4. Procedural Efficiency and Public Policy

You can argue that multiplicity of proceedings is against judicial policy. The High Court's Guidelines were framed to ensure uniformity and to prevent fragmented adjudication. Transfer, recall, or stay ensures consolidation in the specialized forum, which promotes procedural efficiency and serves the public policy of avoiding inconsistent court orders. You can file a Transfer Petition under Section 24 CPC to transfer the Section 36 SMA proceedings to the court seized of the Guardians and Wards Act matter, or vice versa, for consolidated hearing.

5. Guidelines as Public Policy

Yes, you can argue that the Guidelines are binding directions, not mere suggestions. The Calcutta High Court, by order dated September 2025, directed that these guidelines must be followed in all custody matters. The Court directed that until rules are formally framed, the guidelines are to be followed. They have been notified and circulated to all District Judges for compliance. Even other High Courts like Kerala and Karnataka have directed their subordinate courts to follow these guidelines. Thus, they constitute a binding public policy on child welfare.

6. Fragmented Adjudication

You can argue that fragmented adjudication defeats the purpose of the Guidelines and is prejudicial to the minor children through inconsistent court orders. The Guidelines aim to ensure the child's welfare is considered holistically. If one court decides maintenance without considering the custody arrangement and the Parenting Plan pending in another court, it leads to inconsistent and potentially unjust orders. This fragmentation is directly contrary to the spirit and objective of the Guidelines.

7. Whether Section 36 SMA Allows Maintenance for Children

Yes, a court can grant maintenance for children under Section 36 of the Special Marriage Act, 1954. Although the provision primarily speaks of "wife," courts have interpreted it to include maintenance for children. The text of Section 36 allows the court to order the husband to pay "such sum as... it may seem to the court reasonable" for the expenses of the proceeding. This has been construed to include expenses for the maintenance of children. Therefore, the court's order for child maintenance under Section 36 is legally maintainable.

8. Other Objections and Remedies

Beyond review and stay, you have the following remedies:

• Appeal: You can file an appeal against the maintenance order under Section 19 of the Family Courts Act, 1984 before the High Court.

• Revision: You can file a Civil Revision Petition under Section 115 CPC before the High Court challenging the legality, propriety, or regularity of the order.

• Modification/Variation: You can file an application for modification/variation of the maintenance order under Section 36 SMA itself, citing the change in circumstances (the pending Parenting Plan and the binding Guidelines).

• Contempt: If the subordinate court continues to ignore the binding High Court Guidelines, you may initiate Contempt of Court proceedings under the Contempt of Courts Act, 1971.

• Consolidation: File an application under Section 151 CPC for consolidation of the two proceedings before the same court, preferably the 12th ADJ, to ensure holistic adjudication.

Review can be filed but not sure the same will be entertained. Proper remedy is approaching HC. Yes it’s only for wife court can grant maintenance to child  in other provisions under 38 for seeking welfare but in India many court under 36 include it 

Dear Sir,

It is suggested that you apply for review of the said order under the provisions of code of civil procedure in the ame court citing all the things which you have mentioned in your query and it is most likely that the court will not pass order/judgment in your favour. It is not being said to dishearten you, rather in practice, in most of the cases review petitions are dismissed. It is suggested that you expediate the review process and as soon as you get an order, approach Hon'ble High Court stating all the fact challenging the said oder under articel 227 of Indian Consitution. It is probable that Hon'ble High Court during hearing will consider all your submissions which you have mentioned in your query.  

1. Review: You can consider review under Order XLVII Rule 1 CPC, read with the applicable provisions governing the matrimonial proceeding. But “per incuriam” is principally a doctrine used by a superior court; I would plead error apparent/non-consideration of material circumstances, rather than simply saying the order is per incuriam.

2. Guidelines: The Calcutta High Court's 23.09.2025 order expressly directed that the Child Access & Custody Guidelines be followed until formal Rules are framed. However, the Guidelines principally concern custody/access/parenting arrangements. They do not automatically mean that a Section 36 maintenance order is void merely because the maintenance court did not refer to them. Your stronger point is that the court should consider the actual parenting arrangement and each parent's financial contribution while determining the children's needs.

3. Section 36 and children: There is Calcutta High Court authority treating Section 36 as capable of supporting maintenance for a minor child along with the wife. In Rupak Das v. Trishita Das, the court dealt with maintenance claimed for the minor son under Section 36 and applied proportional sharing based on both parents' incomes. So I would not argue that Section 36 can never cover children.

4. Parallel proceedings: The argument that the 12th ADJ has custody jurisdiction and therefore the 10th ADJ cannot determine child maintenance is unlikely to succeed as an absolute jurisdictional objection. Custody and maintenance can legally be dealt with in different proceedings. Instead, argue that the existing Parenting Plan and the father's direct payment of school fees, insurance, etc. are material factors in assessing the ₹30,000 liability.

5. Best immediate remedy: File review + stay of recovery/operation, and simultaneously move the 12th ADJ for an urgent order on the Parenting Plan. If review is rejected, challenge the maintenance order before the appropriate appellate/revisional forum under the SMA/CPC framework. Do not allow the ₹24 lakh arrears to accumulate without seeking interim protection.

Your strongest grounds are therefore: non-consideration of material custody/parenting facts, disproportionate assessment of children's needs, failure to account for direct expenditure already borne by the father, and procedural prejudice caused by the unusually long delay in deciding the application.

I would not say that the maintenance order is automatically invalid merely because the Parenting Plan was not placed before the court. The Guidelines are binding for custody/access matters, but that does not convert every maintenance adjudication into a custody proceeding. The better challenge is on quantum, relevant evidence and failure to consider material circumstances.