Madhya Pradesh High Court
Smt. Rehana Parveen vs Naimuddin on 11 May, 1999
Equivalent citations: AIR2000MP1, 1999(2)MPLJ341
ORDER V.A. Agrawal, J.
1. This revision is directed against the order dt. 12-2-99 passed in Guardian and Wards Case No. 2/98 by 1st ADJ Jabalpur.
2. An application under Sections 7 & 10 of Guardians and Wards Act was filed by the petitioner-mother for the custody of her minor daughter Ku. Huda, now aged about 4 years. The application was opposed on the ground that earlier by order dt/- 31-3-97 in Guardians and Wards Case No. 36/96, the matter of custody of the minor daughter stands already decided and concluded. Therefore, the earlier order would operate as res judicata and the matter cannot be reagitated before the trial Court. The submission as above found favour with the trial Court and by the impugned order, the petition filed by the petitioner-wife under Sections 7 & 16 of the Guardians and Wards Act (hereinafter referred to as 'Act' for short), was dismissed, as not maintainable.
3. The learned counsel for the petitioner has urged firstly that the earlier order dated 31-3-97 in Guardian and Wards Case No. 36/96 was passed on the basis of compromise arid was not on merits, and would not therefore constitute res-judicata, as has been laid down in Pulavarthi Venkata Subba Rao v. Valluri Jagannadha too, AIR 1967 SC 591. It is pointed out that the petitioner is the second wife of the respondent. It has been submitted in the above context that the respondent-husband after the above order passed as a result of consent and compromise between the parties, married a third, wife who died an unnatural death. A child was also born from the third marriage. Therefore, the respondent has married for the fourth time. It has therefore been urged that there is considerable change in the circumstances since the order granting custody of minor was passed. It was further submitted that the view of changed circumstances, as above, it would not be in the interest and welfare of minor that she should remain in the custody of the respondent-husband. It has therefore been urged that the matter deserves reconsideration. Reliance has been placed on Surajmal v. Radheshyam, AIR 1988 SC 1345.
4. As against this, the learned counsel for the respondent has submitted that the parties had with full knowledge of the implications thereof in the previous case No. 36/96, voluntarily entered into an agreement which was duly considered by the trial Court, where after the order dt/- 31-3-97 was passed, keeping the ultimate welfare of the child in mind. It has therefore, been urged that the order passed as above, does not call for interference at the instance of petitioner-wife.
5. It is noticed that the order of the previous case No. 36/96 between the parties was passed on the basis of agreement between the parties. Hence, as laid down in Pulavarthi Venkata Subba Rao (supra) the same was not a decision on merits by the Court; hence would not operate as res-judicata and thus would not operate as bar to the consideration of this application for custody of the child, under Guardian and Wards Act. Reference in the above connection may also be made to Baldevdas Shivlal v. Filmistan Distributors (India) Pvt. Ltd., AIR 1970 SC 406. Moreover, there is substantial change in the circumstances of the parties as has been averred in the application, which requires the same to be considered on merits.
6. It may further be pointed out that while hearing and deciding the matter of custody of child paramount consideration before the Court always is the ultimate welfare of the minor. No other consideration possibly could prevail with the Court, and nothing could prohibit a Court from consideration of the matter if need be, even if it is for the second or third time. The technical principle of res-judicata would not be operative more so, if substantial change in circumstances is averred and found prima facie justified. If such is the case, the subsequent application for custody of the minor cannot be thrown out at the threshold holding it to be not maintainable. The circumstances in the instant case as averred by the petitioner in her petition and as contended by her learned counsel prima-facie justify reconsideration of her petition on merits.
7. Therefore, there cannot be any possible objection regarding the maintainability of the application as above. The learned trial Court therefore grossly erred and failed to exercise jurisdiction vested in it, by dismissing the application holding the same to be not maintainable. Therefore, the impugned order is set aside and the case is remanded for consideration and hearing of the application for the custody of the child.
8. The parties shall be at liberty to file an application for interim custody before the trial Court which shall also be considered and decided on merits. The parties are directed to appear before the trial Court on 5-7-1999, without further notice, which shall proceed to consider the application filed by the petitioner on merits and dispose it of in accordance with law. With the above direction this revision petition stands finally disposed of.