SMT. KAMLESH Vs. RAJENDRA PRATAP

JUDGEMENT

(1.) IN this First Appeal From Order, the mother of a minor Girl has assailed the Order of the District Judge whereby she has been directed to give the custody of the minor girl to her divorced husband. The main plank on which the order of the Court below is assailed is two fold. Firstly that Section 25 of the Guardian and Wards Act (for the sake of brevity expression, hereafter called 'G and W Act') was not applicable in the present case as the Wards had neither been removed nor had left the custody of the lawful guardian and secondly that the proceedings under Section 25 of the G and W Act must be treated to be barred in view of the new provisions which have been brought in by Section 26 of the Hindu Marriage Act, hereafter called 'H and M Act', read with Section 4 sub -clause (b) thereof. Arguments have also been addressed on merits and also on the ground that wishes of the minor had not been ascertained before the impugned order was passed.

(2.) ON the first question, it appears to me that the learned counsel is not on firm ground. It is not disputed that the girl in question is a minor as she has not completed the age of 18 years. The respondent is undisputedly the natural guardian of the girl and the mother was entitled to her custody only upto the age of five years in normal circumstances. The other undisputed facts are that the marriage of the parents had taken place on 9th October, 1979 and the girl in question was born of the wedlock on 14th August, 1971. Subsequently there was estrangement between the two which resulted in a decree for divorce on 8th September, 1977 on the basis of a compromise. It is also not disputed that in 1978 the husband has remarried while the mother remains unmarried so far. The father is a teacher. However, the mother also claims to be a teacher, the fact which is disputed by the father on the ground that she is under suspension at the moment. Admittedly, the girl in question is nearing her 14th birthday.

(3.) THE second leg of the argument of the appellant was that whatever may be the position prior to the passing of the Hindu Marriage Act, the position has basically changed thereafter in view of Section 26 of the H and M Act which has a parallel provision and has over -riding effect on all existing laws. According to the counsel, Section 25 of the Hindu Marriage Act provides for proceedings being taken either during the pendency of a proceeding under the G and W Act or at the time of passing the decree in such proceedings or even subsequent thereto in the matter regarding custody of minor children. For the sake of convenience, Section 26 may be extracted here as under: - -