The court's jurisdiction to make an order for the custody of a child under Section 26 of the Hindu Marriage Act, 1955, is not barred by a previous order of a court under the Guardians and Wards Act, 1890, and the legitimacy or illegitimacy of the child is not relevant in determining the custody of the child under Section 26 of the Hindu Marriage Act, 1955.

( 1 ) THIS appeal is directed against the judgment of the II Additional Judge, city Civil Court, Hyderabad, allowing a petition, O P. No. 63 of 1979, filed under section 13 of the Hindu Marriage Act, 1955 for granting a decree for divorce and directing the custody of the minor child to be with the mother, the respondent herein.

( 2 ) THE husband, who was the petitioner in the lower Court, is the appellant in this appeal. It would appear from the order under appeal that the husband had alleged that the male child was born to the respondent on 14-1-1978 "out of the wedlock", evidently what he means is as a result of the wedlock or matrimonial relationship and not an illegitimate child. It was his case that after the birth of the child, the relationship between the husband and the wife became strained and the wife began indulging in immoral activities and started living in adultery. The respondent used to come home during nights in a drunken condition and sometimes absent herself totally She used to live outside Hyderabad with some persons for days together leaving the child in the house. All efforts for reconciliation proved futile. Ultimately, the respondent without the knowledge of the applellant left the house on 29-10-1978 leaving the child in the house and never returned to the matrimonial home or joined the appellant.

( 3 ) THE respondent, in her counter - affidavit, denied that their married life was ever happy. She alleges that it was unsuccessful and miserable. She alleges that the appellant was impotent and he forced her to extra-marital relationship with one Narasimha Reddy and have a child through him so that the appallant can claim to be the father of the child. He induced the respondent to this life and even made attempts to kill the respondent in order to cover up his impotency. She admits that she was forced to leave the house with the child anticipating danger to their lives at the hands of the appellant. But the appellant came to the house of the respondent when she was away and carried away the child. She was, therefore, forced to file a petition for the custody cf the minor child under the GUARDIANS AND WARDS ACT, 1890. However, that petition was dismissed and the appellant continued to have the custody of the child. The respondent even while denying the allegations made against her, when the matter came up for trial, both the parties agreed to a divorce by consent, but contested the matter on the question of custody of the child, which the court was bound to decide under section 26 of the HINDU MARRIAGE ACT, 1955. In this behalf, the learned Additional Judge directed the custody of the child to be with the mother at least till the child crosses the age of five years.

( 4 ) THE controversy between the parties as to the custody of the child has to be resolved having regard to two very importani facts, firstly, what is the effect of the order of the Chief Judge, City Civil court, dated 28-9-1979, made in O. P. No. 300 of 1979 filed under the guardians AND WARDS ACT, 1890 and secondly, whether the child is legitimate or illegitimate.

( 5 ) SO far as the first point is concerned, it would be seen that while the child was in fact in the custody of the father, the mother filed for a declaration and to appoint her as the guardian of the person and property of the minor under section 10 of the Hindu Minority and guardianship Act read with sections 7 and 11of the GUARDIANS AND WARDS ACT, 1890. The question that was posed for consideration by the learned Chief Judge city Civil Court, was whether the petitioner-respondent is entitled to be appointed as guardian of her minor child and whether it is in the interests of the minor to give her the custody of the minor child. Having regard to the evidence brought on record that the wife was living with her paramour, G. Narsimha Reddy, who is himself having a wife and childdren, the Court did not think it proper and in the interest of the child to take it away from the custody

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