GUNJAN BHARGAVA Vs. SRI GAURAV BHARGAVA

JUDGEMENT

(1.) THE petitioner is before this Court assailing the order dated 09.01.2013 passed in G and WC No. 136/2011 on IA -IV filed under Section 10 read with Section 151 of CPC. The order is impugned at Annexure -F to the petition. The petitioner herein is the wife of the respondent. Due to certain marital discord, they were before the Family Court in M.C. No. 2378/2006 which was instituted by the petitioner seeking restitution of conjugal rights and the respondent herein filed M.C. No. 903/2007 for dissolution of marriage. The family Court by its judgment dated 28.02.2011 has dismissed the petition filed by the petitioner herein and has allowed the petition filed by the respondent. It is not in dispute that against the said judgment, a Miscellaneous First Appeal is filed before this Court and the same is pending consideration.

(2.) WHEN this was the position, the respondent herein has filed a petition under Section 25 of the Guardians and Wards Act in G and WC No. 136/2011 seeking custody of the child. The petitioner herein filed an application under Section 10 read with Section 151 of CPC seeking stay of further proceedings of the said petition on the ground that the matter is pending before this Court in Miscellaneous First Appeal and the very basis on which the dissolution of marriage was ordered is on a similar pleading and therefore the parties should await the decision in the Miscellaneous First Appeal. The said application was objected to by the respondent. The Family Court by the impugned order dated 09.01.2013 has rejected the application and as such, the matter before the Court below in G and WC would be proceeded with. It is in that circumstance, the petitioner is before this Court.

(3.) LEARNED senior counsel representing the respondent would point out that when a petition under Section 25 of the Guardians and Wards Act is filed, the Court below would have to consider all aspects relating and relevant to the custody of the child. In that circumstance, the pleading relating to mental condition of the petitioner is one of the circumstances which has been stated in the petition along with the other pleadings and the Court below based on the evidence available and also keeping in view the welfare of the child will have to decide upon the custody. They are all matters which would require consideration by the Family Court irrespective of the result of the Miscellaneous First Appeal. It is therefore contended that the Court below was justified.