SUSANGINI PANDA Vs. GANGADHAR PANDA

JUDGEMENT

(1.) This revision at the instance of the wife has been directed against the interim order dated 30th Oct., 1984 passed in Civil Suit No. 22-A of 1984 under section 26 of the Hindu Marriage Act, 1955 (hereinafter referred to as the Act').

(2.) Non-applicant-husband has filed a petition under Sec. 13 of the Act for divorce against his applicant wife on the ground of desertion. During the pendency of his divorce petition the husband filed an application under section 26 of the Act for the custody of his 3 children who were living with his wife (the applicant, herein), since 1981) in village Jhariyapali. The eldest child is girl, named Saudamini, aged about 11 years studying in Class V, second daughter named Subhashini, aged about 9 years studying in class II and the 3rd is son named Manoj Kumar aged about 7 years studying in Class I. The non-applicant-husband claimed custody of these children on the ground that she was herself dependent on her parents having no means of income of herself and, therefore, it was not possible for her to provide proper clothing, food and education to the children. It has also been contended that in the village where his wife is living with the children there is a school upto Vth class only whereas the husband-non applicant is a teacher posted at Raigarh which is a district place having better educational facilities. He was drawing Rs. 700.00 as salary besides some agricultural income and he was, therefore, in a better position to maintain the children in a better and healthy atmosphere.

(3.) The applicant wife contested the said application by contending that her above mentioned children are living with her since 1980 but her husband never cared for them. The application for custody of the children has been filed only with a motive to cause harrassment to her and that if the children are removed from her custody it will hurt their feelings and shall adversely affect their mind. She took the plea that she and her parents had sufficient means to maintain the children who were getting proper education in the village. It was also contended that the non-applicant-husband had filed a separate petition for the custody of the said children under section 25 of the Guardians and Wards Act which is pending and, therefore, no order for custody should be passed on the application under section 25 of the Act and the divorce petition.