Section 26 of the Hindu Marriage Act only applies to parents and parties in a marriage, and does not extend to third parties who are not parties to the suit or proceeding or who do not figure as parents of the child whose custody is in question.

Bijitendra Mohan Mitra, I.: The present revisional application is directed against Order No. 19 dated 3.9.1994 passed by the' 9th Court of Additional District Judge at Alipore in Misc. Case No.6 of 1994. The said Misc. case is one under s. 26 of the Hindu Marriage Act, 1955 since amended. The Misc. case is off shoot of a matrimonial proceeding being Matrimonial Suit No. 18 of 1994 filed by the husband against the wife for the relief of restitution of conjugal rights. The petitioner/father being aggrieved by the impugned order has come to this Court. The mother of the child is a Hindu and a citizen of India and the father is also a Hindu but a citizen of Canada. The husband petitioner is a permanent resident of Canada being engaged in his avocation of gainful occupation. In the said Misc. case a prayer was made to the effect so that the petitioner father may have access to the child and petitioner's mother, Smt. Minati Dutt and his married sister, Smt. Sukanya Dutt are allowed to see the child once in a week during the petitioner's absence from this Country. This Court has elicited the information that the sister of the petitioner, Smt. Sukanya Dutt, as a married person having a child of her own and she also stayed for some time in Bollivia.

2. The moot point for controversy in this proceeding is as to whether the petitioner's mother and sister can be allowed access to the child of the parties. It is to be remembered that in a matrimonial proceeding under the Hindu Marriage Act, a right of custody and/or access is being asserted by the father petitioner. There is no other proceeding pending either for custody or for guardianship.

3. Section 26 of the Hindu Marriage Act provides that the Court will pass such orders upon application by petition for the purpose about custody, maintenance and education of the minor children. In a matrimonial proceeding the parties are partners in life and they are parties to the marriage and nobody else is a party in the proceeding and can figure as a party in a pending lis. The term children in this Section will include not only legitimate children, but those deemed to be legitimate by operation of s. 16 in case of void and voidable marriage as also the children, the marriage of whose parents was the subject matter of any proceeding under this Act. Although the word 'children' in a statute prima face 'means legitimate children but the same meaning is displaced in the context in which the word appears in this Section and it embraces a wider category other than the legitimate children. It may also tend to include within its ambit the illegitimate children. The test of jurisdiction under s. 26 of the Hindu Marriage Act is a parenthood and not the legitimacy of the child, but the child in relation to whose custody, maintenance and education, an order is made must be a child of the parties to the proceeding under this Act. Here by the prayer contained in the petition under s. 26 of the Hindu Marriage Act attempt has been made to extend its ambit beyond parents and the parties in marriage and it tends to include third parties. On plain reading of s. 26 of the Hindu Marriage Act it does not appear that the same can be extended to persons who are not parties to the suit or proceeding or who do not figure as parents of the child. Here the Claim put forward in favour of the grand-mother and father's sister is beyond the purview of the limits of s. 26 of the Hindu Marriage Act. The said claim of custody of outsider may be considered in a proceeding for guardianship or custody in an independent lis, but not in a matrimonial lis. As such this Court because of its appreciation of the conspectus of dimension of s. 26 of the Hindu Marriage Act does not feel that the said Section 'applies to outsider, those who are not parties to the matrimonial lis or who cannot claim their locus standi as parents of the child whose custody is in question. The prayer as contained in the petition under s. 26 filed before th