DEVIPRASAD S O BIMANCHANDRA MUKHERJEE Vs. SANDHYADEVI

JUDGEMENT

(1.) This is a revision by the applicant-husband whose petition for declaration and appointment as the guardian of the person and property of his minor child under section 10 of the Guardians and Wards Act, 1890 (for short, "the Act") is stayed by the learned trial Court under section 10 of the Code of Civil Procedure (for short, "the C.P.C."). Briefly, the facts are that the applicant was married to the non-applicant on 5-6-1968 in Tejpur, in the State of Assam. A daughter was born out of their wedlock on 21-5-1969. However, it appears that there were bickerings between the husband and the wife thereafter and the wife i.e. the non-applicant No. 1 instituted against the applicant-husband divorce proceedings at Tejpur in Title Suit Hindu Matrimonial petition No. 2 of 1978 which are, I am told by the parties, pending before the District Judge, Tejpur. It is clear from the prayer in her petition for divorce that she claimed in the divorce proceedings the following reliefs:

(2.) In the said proceedings filed by the non-applicant No. 1 she also claimed interim orders for her maintenance as well as for custody, maintenance and education of her minor daughter under section 24 of the Hindu Marriage Act, 1955 pendents lite. The learned District Judge by his order dated 20-3-1979 (Document No. 4) granted custody of the minor child to the non-applicant No. 1 mother and varied with effect from June 1978 maintenance allowance from Rs. 150/- to Rs. 200/- for proper maintenance and education of the minor daughter. It is thus clear that by the order of the learned District Judge in the aforesaid cause the minor daughter is under the custody of her mother and the applicant is directed to pay an allowance of Rs. 200/- for her maintenance and education.

(3.) When the aforesaid divorce proceedings were going on end in fact after the aforesaid order relating to custody, maintenance and education of his minor daughter was passed in the said proceedings initiated by the non-applicant No. 1 at Tejpur, the applicant who is in service in the Geological Survey of India at Nagpur, filed the instant application under the Act. In the instant application the applicant has claimed in himself a declaration of being and or for his appointment as the guardian of the person as well as the property of his minor daughter. The non-applicant No. 1 made an application in the instant proceedings before the trail Court under section 10 of the C.P.C. claiming that since the question of guardianship was the subject-matter of the previous proceedings instituted by her in T.S. Hindu Marriage Petition No. 2 of 1978 against the applicant under the Hindu Marriage Act till the said proceedings are finally decided the instant proceedings should be stayed. The applicant resisted the said application upon several grounds including the ground that the provisions of section 10 of the Act are not applicable to the instant proceedings.