RAJENDRA SINGH Vs. GARIMA

JUDGEMENT

(1.) This is an appeal under Section 28 of the Hindu Marriage Act, 1955 (for short "the Act of 1955") against the order dated 16-11-2010 passed by 1st Additional Principal Judge, Family Court, Indore in Miscellaneous Case No. 175/2010. Briefly stated, the appellant and respondent were married on 2-5-1993. Out of their wedlock, they have two daughters However, on account of differences between the appellant and the respondent, they started living separately and submitted an application under Section 13-B of the Act of 1955 seeking divorce by mutual consent. The 1st Additional Principal Judge, Family Court, Indore vide judgment and decree dated 24-2-2009 passed in Hindu Marriage Case No. 55/2008 allowed the joint prayer made by the appellant and the respondent and granted a decree of divorce by mutual consent. As regards the children, while passing the decree, the Court below made following arrangement about the custody and the visitation rights:--

(2.) When the matter stood thus, after about an year the appellant-husband submitted an application by invoking the provisions of Section 26 of the Act of 1955 seeking custody of the children. The said application was dismissed by the Trial Court vide order dated 16-11-2010 holding it to be not maintainable. The Review Petition filed by the appellant also suffered dismissal vide order dated 20-5-2011. Feeling aggrieved, the appellant has filed this appeal.

(3.) Having gone through the order dated 16-11-2010 passed by the Trial Court, we find that the Trial Court was of the view that the provisions contained in Section 26 of the Act of 1955 having been once invoked by the parties and a decree of divorce making arrangement for the custody of children having been passed on 24-2-2009 the subsequent application under Section 26 of the Act of 1955 filed by the appellant after passing of the decree will not be maintainable.