JUDGMENT

BISWANATH RATH, J. - This writ petition has been filed challenging therein the order dated 08.10.2012 passed by the Judge Family Court, Bhubaneswar in C.P. no. 106 of 2010 thereby dropping the C.P. No. 106 of 2010 as not maintainable.

2.The short fact involved in the case is that the present petitioner, as wife, filed Guardian Misc. Case No. 208 of 2010 which was subsequently numbered as C.P. No. 106 of 2010, an application under Section 7 read with Section 10 of The Guardian and Wards Act, 1890 for appointing guardian for minor children. The application was filed basing on assertion that the marriage between the petitioner and the opposite party No. 2 was solemnized as per Hindu customs and tradition and out of their wed lock, two male children took birth, in view of the dissention between the parties, both the parties got separated and the wife is residing separately. It was further pleaded that the minor children were in custody of the petitioner since their birth till the date of filing of the application. The petitioner herself is an employee in Navodaya Bidyalaya, getting a handsome salary and she is financially sound to maintain both her children with support of her parents. She is taking all care of the minor children. Her husband is a driver, hand neither love affection towards the children nor he has ever shown fatherly affection, since the birth of the children, which is also a material factor for not allowing the children under the guardianship of the opposite party in filing the application. The petitioner has shown the cause of action to be on the opposite party No. 2 filing the petition under Section 97 of the Cr.P.C. on 07.09.2010 for wrongful confinement of the children. Upon receipt of the notice in the C.P. no. 106 OF 2010, the opposite party-husband filed the written statement opposing the allegations made by the wife and while admitting their marriage, the opposite party-husband stated that they are blessed with twin sons and that the petitioner was a working lady before her marriage, even dissention in the family is for the reason of the wife. The husband disputed the custody of the minor children with the petitioner since their birth and claimed that both the minor sons were residing thereafter with the petitioner since their birth on 9.12.2001 but wife herself left the custody of both the children with him on the day of Mahalaya in 2007 leaving with the opposite party; No. 2 in his native village. While the matter stood thus, the petitioner kidnapped both the sons on their way to school, namely, Glorious English Medium School, Jajpur on 21.8.2010 remained in their mother’s custody till their recovery vide an order of the Court dated 07.12.2011. The husband in filing the written statement contended that he is able to nurture both the sons giving them utmost love and affection as well as care and he is looking forward to a good future to both of them.

3.During pendency of the aforesaid application, the husband-opposite party filed an application for rejection of C.P. No. 106 of 2010 on applying provision under Section 9 (I) of the Guardian and Wards Act, 1890. Upon receipt of the copy of the application, the wife filed an objection indicating therein that the twin sons after attending their school going age were admitted at Saraswati Shishu Mandir, Bolgarh, Khurda in the year 2005 and prior to this period, both the sons were residing with the mother-petitioner. On 01.04.2006 she gave both of them admission in KG-I, Aurobindo Integral School, Rajasunakhala, Khurda in the district of Khurda and subsequently both the sons were admitted in KG-II at Capital Sovaniya Shikshashram, Chandrasekharpur, Bhubaneswar on 03.04.2007 and both of them have successfully completed their Standard-I examination. In the meantime, in the month of June, 2009, the opposite party No. 2 deceitfully and with fraudulent intention took both the children and confined both of them with him, for which both of them were una