REKHA SHARMA, J. (ORAL)

1. This petition has been preferred against the order of Additional District Judge, Ms. Anju Bajaj Chandna dated October 05, 2005, dismissing the application of the petitioner filed by her under Order 7 Rule 11 of the Code of Civil Procedure. By virtue of the application, the petitioner who was defendant in the trial Court, had opposed a petition filed by the respondent under Section 7 of the Guardians & Wards Act, 1890 and prayed that the same be rejected as not maintainable in view of an earlier order dated May 02, 2002 passed by a matrimonial Court on a mutual consent petition filed by the petitioner and the respondent granting them a decree of divorce as well as granting custody of their minor child Yashoda to the petitioner.

It is not in dispute that a decree of divorce dated May 02, 2002 was passed by the Court of the Additional District Judge on a joint petition filed by the petitioner and the respondent. It is also not in dispute that both the petitioner and the respondent had made separate statements before the matrimonial Court and that the respondent, who is the father of the child, agreed that he had no objection if the custody of the child was given over to the petitioner exclusively and absolutely. The matrimonial Court relying upon the statement so made by the respondent, while passing the decree of divorce, observed in its order that the parties had agreed that the custody and guardianship of the child Yashoda would remain absolutely with the mother and she would be responsible for upbringing and education of the child. The Court further observed that the respondent had undertaken not to interfere with the permanent and exclusive custody of the child under the guardianship of the petitioner at any stage. Not only this, the Court also observed that the respondent had also stated that in the event of anything happening to the petitioner, the child Yashoda would remain in the absolute and exclusive custody and guardianship of the parents of the petitioner.

The respondent inspite of having agreed before the matrimonial Court and inspite of having given the statement and undertaking that the custody of their minor child Yashoda shall remain with the petitioner absolutely and that he shall not interfere with the exclusive

and permanent custody of the child, filed a petition under Section 7 of the Guardians & Wards Act, 1890 praying for an order appointing him as the guardian of the person and property of the minor.

The question that falls for consideration in this petition is, whether in the background of the facts noticed above, was it open to the respondent to file a petition under Section 7 of the Guardian & Wards Act, 1890?

It is submitted by the learned counsel for the respondent that no order passed with respect to the guardianship of a minor child can ever be treated as final and that the parties can always move for variation of the same. It is further submitted that the proceedings before the matrimonial Court having come to an end, the Guardians & Wards Act, 1890 is the only Act under which the respondent could seek any further order with regard to the guardianship of the person or property of the minor.

As against the above submissions of the learned counsel for the respondent, learned counsel for the petitioner has relied upon Section 26 of the Hindu Marriage Act, 1955. Before I proceed further, it is necessary to reproduce Section 26 of the said Act. This is how it runs:-

“26. Custody of children.– In any proceeding under this Act, the court may, from time to time, pass such interim orders and make such provisions in the decree as it may deem just and proper with respect to the custody, maintenance and education of minor children, consistently with their wishes, wherever possible, and may, after the decree, upon application by petition for the purpose, make from time to time, all such orders and provisions with respect to the custody, maintenance an