REHANA PARVEEN Vs. NAIMUDDIN OPPOSITE PARTY

JUDGEMENT

(1.) This revision is directed against the order dt. 12-2-99 passed in Guardian and Wards Case No. 2/98 by Ist ADJ Jabalpur.

(2.) An application under Sections 7 and 10 of Guardians and Wards Act was filed by the petitioner-mother for the custody of her minor daughter Ku. Huda, now aged about 4 years. The application was opposed on the ground that earlier by order dt/- 31-3-97 in Guardians and Wards Case No. 36/96, the matter of custody of the minor daughter stands already decided and concluded. Therefore, the earlier order would operate as res judicata and the matter cannot be reagitated before the trial Court. The submission as above found favour with the trial Court and by the impugned order, the petition filed by the petitioner-wife under Sections 7 and 10 of the Guardians and Wards Act (hereinafter referred to as 'Act' for short), was dismissed, as not maintainable.

(3.) The learned counsel for the petitioner has urged firstly that the earlier order dated 31-3-97 in Guardian and Wards Case No. 36/96 was passed on the basis of compromise and was not on merits, and would not therefore constitute res-judicata, as has been laid down in Pulavarthi Venkata Subba Rao v. Valluri Jagannadha Rao, AIR 1967 SC 591. It is pointed out that the petitioner is the second wife of the respondent. It has been submitted in the above context that the respondent-husband after the above order passed as a result of consent and compromise between the parties, married a third wife who died an unnatural death. A child was also born from the third marriage. Therefore, the respondent has married for the fourth time. It has therefore been urged that there is considerable change in the circumstances since the order granting custody of minor was passed. It was further submitted that the view of changed circumstances, as above, it would not be in the interest and welfare of minor that she should remain in the custody of the respondent-husband. It has therefore been urged that the matter deserves reconsideration. Reliance has been placed on Surajmal v. Radheshyam, AIR 1988 SC 1345.