1. Civil Miscellaneous Appeal filed against the order and decreetal order dated 29.04.2011 made in G.W.O.P. No. 44 of 2010 on the file of the Learned Principal District Judge, Namakkal.

2. The facts of the case relate to an unsuccessful married life of two Doctors by Profession and the present appeal relates to the custody of their only child Sudharsan, aged about 10 years now. This dispute started when the boy was 7 years old.

3. The Appellant and the Respondent were married on 20.01.2002. Their married life fell apart and the allegations and counter allegations of cruelty against each other surfaced.

4. The Appellant/husband filed H.M.O.P. No. 25 of 2010 for divorce before the Sub-Court, Rasipuram. The same was resisted by the Respondent/Wife. The Respondent wife an application dated 07.07.2010 under Section 25 of the Guardians and Wards Act, 1890 for the custody of the minor Sudharsan who was 7 years at that time and was in the custody of the Appellant father.

5. The Application was resisted by the Appellant/husband on all grounds, more particularly on the ground that the appellant has all the means to maintain the child and he was put in a good school and being educated, whereas, the Respondent/wife was staying in a hospital and pursuing her higher studies.

6. An Interlocutory Application was filed by the Appellant in I.A. No. 39 of 2010 in HMOP No.25 of 2010 for a protection order seeking protection that the Respondent/wife should not forcibly take away the child from the custody of the father.

7. Similarly, the respondent also filed I.A. No. 40 of 2010 under Section 26 of the Hindu Marriage Act, 1955 for the Interim Custody of the child. The prayer sought for in the petition was as follows:

8. 18.09.2010, the respondent made an endorsement that she will not without a Court Direction, forcibly take away the child from the Appellant. The endorsement reads as follows:

9. On the same day, an order was passed recording the endorsement made by the respondent and permitting the respondent to take the child Sudharsan on every 2nd and 4th Saturday and hand over the child back on the ensuing Sunday. The order reads as follows:

10. Meanwhile, G.W.O.P. No. 44 of 2010 was contested and enquired and the learned Principal District Judge, Namakkal passed an order on 29.04.2011, thereby allowing the Application and directed the Appellant to hand over the custody of the child. The said order is challenged before this Hon’ble Court on various grounds.

11. Though the main ground raised in the grounds of Appeal is that the Court below has come to an erroneous conclusion and the welfare of the child was not discussed, the maintainability of the petition was also questioned before this Court by the learned Senior Counsel Mr. N. Jothi.

12. A detailed Written Submission raising various legal issues was filed by the appellant. The main contentions of the Learned Senior Counsel are as follows:

(i) the Appellant filed a divorce petition in HMOP No.25 of 2010 on 24.06.2010 under the Hindu Marriages Act, before the Sub-Court.

(ii) after the receipt of the summons in the divorce petition, the respondent presented a petition dated 09.07.2010 under Section 25 of the Guardian and Wards Act (hereinafter referred as Guardianship Act) for the custody of the child before the District Court.

(iii) thereafter, the respondent has preferred I.A. No. 40/2010 in the divorce petition praying interim custody of the child.

(iv) While filing a petition under Guardianship Act, it is mandatory to make a declaration that no such relief is sought for in any other Court.

(v) Meanwhile a consent order was passed in the I.A. No. 40/2010 on 18.09.2010 granting interim custody of the child to the Respondent, on the 2nd and 4th Saturday and Sunday of every month.

(vi) the respondent who had obtained an order of interim custody under the provisions of the Hindu Marriages Act, had not disclosed the same before the District Court where the G.W.O.P. was pending.

(vii) Under Section 14 of the