SUMATIBEN Vs. JASCANT BHOGILAL SUTARIA

JUDGEMENT

(1.) The petitoner in this case is the wife, the respondent being her former husband, her marriage with whom has been dissolved. The petitioner was married a son since named Tarang was born to the petitoner on the 10th of August 1948. On or abour 11-3-1955 the petitioner filed suit No. 166 and 1955, being the suit in which this petition has been filed, agianst the respondent for divorces and dissolution of the said marriage on the ground of desertion of the said marriage on the ground of desertion under the provisions of the Bombay Hindu Divorce Act, 1947, which was then in force. In the suit there was prayer for dissolution of marriage but there was a prayer for dissolution of marriage but there was no prayer for the custody of the son Tarang, although since prior to te filing of the suit Tarang was in the custody of the respondent. A decree for dissolution of marriage in the suit on 12-4-1944. The petitioner, in November 1958, filed the present petition praying inter alia for the custody of Tarang, and in the alternative, for an order directing the respondent to allow the petitioner to take away her minor son Tarang to live with her at Bombay during the school vacation and/or during sutiable school holidays.

(2.) The respondent is resisting this petition on several grounds one of which is by way of preliminary objection. That preliminary objection is that the petition in so many ords staes that the same has been filed under S. 15 of the Bombay Hindu Divorce Act, 1947 (which I will hereafter refer to as "the Bombay Act"), that the Bombay Act stands repealed by S. 30 of the Hindu Marriage Act, 1955 (which I hereafter refer to as "the Central Act") and that, therefore, this petition is mixconceived and must be dismissed.

(3.) Section 15 of the Bombay Act provided as follows: :In any suit under this Act, the Court may from time to time pass such interim orders and make such provisions in the decree as it may deem just and proper with respect to the custody, maintenance and education of minor children, the marriage of whose parents is the subject of such suit, and may, after the decree, upon appllication by petition for the purpose, make, revoke, suspend or vary from time to time all such orders and provisions with respect to the custody maintenance and education of such decree or interim orders in case the suit fo obtaining such decree were still pending." It is this section under which the present petition has been made. The Central Act. however, came into operation on 18-5-1955, that is prior to the filling of this petition.