PRIYA Vs. MAHADEV

JUDGEMENT

(1.) The respondent herein filed an application for custody of the child Amogh; that the respondent is the husband of the appellant herein. The child Amogh is the first son of the parties. They have got another son by name Aman. The respondent herein filed petition for divorce in M.C. NO.116/2007. Both the children are with the appellant herein. When Amogh was aged about 3 years, a petition came to be filed by the respondent claiming custody of the child Amogh under Section-7 of the Guardian and Wards Act. The trial Court allowed the application and granted the custody of the child to the respondent. The said order is called in question in this appeal.

(2.) We have heard the learned advocates appearing on both sides and perused the records.

(3.) At the time of filing the petition, the appellant herein was aged about 28 years, whereas the respondent was aged about 39 years and the child was aged about 3 years. Under Section-6 of the Hindu Minority and Guardianship Act, the custody of the minor who has not completed the age of 5 years shall ordinarily be with the mother. Thus the application filed by the respondent herein itself was not maintainable in the strict sense prior to the child attaining the age of 5 years.