The appellant was entitled to seek custody of the child under Section 26 of the Hindu Marriage Act, even after the conclusion of the divorce proceeding.

JUDGMENT

1. This appeal is directed against Order dated 03/07/2012, passed in Misc.No.98/2011, arising out of M.C.No.842/2008, disposed on 21/04/2011, by the IV Addl. Family Court Judge at Bengaluru, being aggrieved by the custody of the minor child, Aarav Dwij, having been given to the mother of the child.

2. Briefly stated, the facts are that the appellant had filed M.C.No.842/2008, as against the respondent/husband under Section 13(1)(ia) and (ib) of the Hindu Marriage Act, 1955 (hereinafter referred to as "the Act" for the sake of convenience), seeking dissolution of her marriage with respondent by a decree of divorce. By judgment and decree dated 21/04/2011, the marriage between the parties was dissolved and a decree of divorce was granted. Since there was no order made with regard to the custody of the minor child Aarav Dwij, who was then aged about seven years, an application was filed under Sections 26 and 27 of the Act seeking permanent custody of the minor child. The said application was numbered as Misc.No.98/2011. By order dated 19/06/2012, the said application was dismissed by considering it to be review of the judgment and decree, passed in M.C.No.842/2008, disposed on 21/04/2011. Being aggrieved, the mother of the child and wife of the respondent has preferred this appeal.

3. We have heard learned counsel for the appellant/wife, who has appeared in person and learned counsel for the respondent/husband through video conference.

4. Appellant's counsel submitted that although M.C.No.842/2008 was filed by the appellant seeking dissolution of marriage by a decree of divorce, nevertheless, in such a proceeding, the custody of children could also be considered as Section 26 of the Act expressly provides for the same. That in the instant case, as regards the custody of the child, though relief was sought for in that regard, but since the Court was of the opinion that such a relief could be sought for only by filing a separate petition under the provisions of the Guardians and Wards Act, 1980 (hereinafter referred to as "G&WC Act" for short), a memo was filed by the counsel stating that independently such relief could be sought. In the circumstances, IV Addl. Family Court granted only the relief of dissolution of marriage. However, on legal advise, the appellant herein preferred an application under Section 26 of the Act seeking for an order to be made on the custody of the minor child to her. That application was dismissed by construing the same to be a review and held that there was no error apparent on the face of the record in the judgment and decree of divorce. Learned counsel submitted that the said impression of the Court below is erroneous inasmuch as under Section 26 of the Act, it is permissible to seek an order regarding custody of the child; merely because, earlier the counsel then appearing for the appellant had filed a memo stating that an independent proceeding would be filed under G&WC Act seeking relief with regard to the custody of the child, the application filed under Section 26 of the Act could not have been dismissed. In that regard, he drew our attention to Section 26 of the Act to contend that even after the disposal of the main proceeding, it is permissible to seek modification of custody orders, if made in the original proceeding and such being the position, there was no error on the part of the appellant in seeking such an order after the disposal of M.C.No.842/2008.

5. Learned counsel for the appellant further contended that the respondent had questioned and contested the paternity of the child and the appellant/wife had established that the respondent was the father of the child by producing relevant evidence. That the decree of divorce was granted on 21/04/2011 and this appeal was filed in the year 2013. That during the pendency of the proceeding before the Family Court or thereafter, the respondent has not taken any interest in respect of the child, who is presently sixteen years of age, stu