MAYANK BHARGAVA Vs. JYOTI BHARGAVA

JUDGEMENT

(1.) This appeal arises out of the order dated 17.11.2014 passed by the District Judge, Family Court, Gurgaon, whereby the application filed by the appellant under Order 7 Rule 11 of the Code of Civil Procedure read with Section 10 of the Family Courts Act, 1984 for rejection of the petition filed under Section 26 of the Hindu Marriage Act, 1955 (in short "the Act") read with Section 6 of the Hindu Minority and Guardianship Act, 1956 and Section 25 of the Guardianship and Wards Act, 1890, for the full custody of minor Yuvraj, was dismissed. The marriage between the parties was solemnized on 18.2.2001 at Sonepat as per Hindu rites and ceremonies. Out of the said wedlock, a son, namely, Yuvraj was born on 31.5.2006. After the marriage, the respondent was subjected to mental trauma and cruelly by the appellant and his family members. The marriage of the parties was broken down completely as the appellant and his family members wanted divorce. The respondent agreed for the divorce and hence a petition under Section 13-B of the Act was filed for a decree of divorce by mutual consent. Accordingly, the trial court vide judgment and decree dated 24.1.2011 dissolved the marriage of the parties by a decree of divorce by mutual consent. By way of said judgment and decree, the custody of the minor child Yuvraj was given to the appellant and the respondent was given visitation " rights only. Thereafter, the respondent filed the petition for modifying the judgment dated 24.1.2011 to the extent that exclusive custody of the minor Yuvraj be granted to her and the appellant, his servants, associates, relatives, friends etc. be restrained from forcibly taking away minor Yuvraj from her custody and she be appointed as his guardian for all purposes. However, during the pendency of the said petition, an application under Order 7 Rule 11 of the Code of Civil Procedure read with Section 10 of the Family Courts Act, 1984 for rejection of the petition was filed by the appellant. The trial court vide order dated 17.11.2014 dismissed the said application. Hence, the present appeal.

(2.) Learned counsel for the appellant submitted that the trial court had dismissed the application filed under Order 7 Rule 11 of the Code of Civil Procedure for rejection of the petition filed under Section 26 of the Act read with Section 6 of the Hindu Minority and Guardianship Act, 1956 and Section 25 of the Guardianship and Wards Act, 1890, for the custody of minor Yuvraj. Relying upon Inderjit Singh Grewal v. State of Punjab and another, 2011 12 SCC 588, P. Madhavan Nair and others v. K. Ravindran Unni, 1993 AIR(Kar) 203 and Smt. Sibani Banerjee v. Tapan Kumar Mukherjee, 1990 AIR(Cal) 4 it was urged that separate petition under Section 26 of the Act was not maintainable and the respondent could only file an application for variation of the order of custody of child in earlier petition.

(3.) After hearing learned counsel for the appellant, we do not find any merit in the appeal.