AWADHOOT Vs. MOHINI

JUDGEMENT

(1.) HE filed an application for divorce against the non-applicant which was registered as Case No. 534/1991. The parties have one son who at the date of the presentation of the application was very young and this boy Gaurang is now aged about 7-8 years. The non-applicant has been living separately and keeping the child with her since about 1988 and during this period since then the applicant has not been permitted to visit or meet his son. The applicant was avoided then that he had no right to custody of the child until attaining of the age of over six years by the child and in order not to exaserbate the already tense feeling between the parties did not seek custody. His attempts to visit his son or meet him were frustrated by the non-applicant, who even instructed the Principal of the School where Gaurang was entered not to permit the applicant to meet the child. Ultimately the applicant moved an application to the Court Under Section 25 of the H. M. Act for custody of his male child on the ground that apart from being legal guardian of his child and entitled to custody as such he was in a such better position to bring up the child and give him better education inasmuch as he was financially very well placed. The application was resisted by the non-resisted applicant on the ground inter alia that the application had been considered the impugned order.

(2.) SECTION 28 of the Hindu Marriage Act 1955 (hereinafter referred to as Act) provides :

(3.) BOTH the learned counsel admitted that the matrimonial petition has not been decided finally by the Court. The final order would be passed only after the matrimonial petition stands decided, in respect of custody of the child of the spouses who are parties to the matrimonial petition. Therefore, this petition is maintainable. The objection on behalf of the non-applicant in this context is hereby dismissed.