SHAILENDRA NATH Vs. SMT. ARCHANA NATH

JUDGEMENT

(1.) A short question arises for determination in this appeal as to whether an application under section 25 of the Guardians And Wards Act, 1890 (henceforth 'the Act') is maintainable in view of an earlier decision dated 08/08/2007 between the parties, wherein, the Family Court, Durg rejected the appellant's application for custody of minor son-Aryan Shrivastava.

(2.) Some elemental facts are needed to be mentioned only to understand the relation and nature of dispute between the parties who were married at Raipur on 18/11/2000. Son-Aryan was born out of the wedlock on 27/05/2003. The respondent with her minor son-Aryan are residing separately from the appellant w.e.f. 21/06/2006. When master Aryan was aged about 3 years, the appellant had moved an application under Section 25 of the Act, 1890 seeking his custody and the said application bearing Miscellaneous Civil Suit No. 40/2007 was dismissed by the First Additional Principal Judge to the Court of Family Court, Durg on 08/08/2007 (Annexure-A-2). After lapse of about 4 years, the subject application has been preferred by the appellant on the ground amongst others that the son is now aged about 8 years, therefore, the father being his natural guardian, is entitled to have the custody of his minor son.

(3.) The respondent moved an application under Order 7, Rule 11 C.P.C. objecting to the maintainability of the application under Section 25 of the Act on twin grounds, firstly that the application is not maintainable at Durg Court because the minor is residing at Raipur and secondly that in view of the dismissal of similar application at an earlier point of time, the present application is barred by the principle of res judicata.