HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D. B. Civil Miscellaneous Appeal No. 572/2019
Naveen Kumar Arora @ Neeraj S/o Shri Harbansh Lal Paruthi, By
Caste Punjabi, aged About 37 Years, R/o Plot No. 33, Lane No. 7,
Gomes Defence Colony, Vaishali Nagar, Jaipur.
—-Non-Applicant-Appellant
Versus
Smt. Amandeep Saini D/o Late Shri Surendra Saini, By Caste
Saini, Aged about 32 Years, R/o 405, Galexi Residency, National
Highway No. 17, Near Neksa Showroom, Porvorim Bardej, Goa-
403521. Permanent resident of 4-D, Shalimarg Enclave,
Opposite Cold Storage, Near Boli Sahib Gurudwara, Dhakoli,
Jirakhpur, Punjab.
—-Applicant-Respondent
For Appellant : Mr. Amit Jinda.
For Respondent : Mr. Sanjay Rahar.
HON’BLE MRS. JUSTICE SABINA
HON’BLE MR. JUSTICE NARENDRA SINGH DHADDHA
Judgment
02/03/2020
Appellant has filed this appeal challenging order dated
20.12.2018 passed by Family Court No. 3, Jaipur (hereinafter
referred to as ‘the Family Court’).
Learned counsel for the appellant has submitted that
appellant got married to respondent on 03.03.2006. Out of the
said wedlock, a daughter was born to the parties. Thereafter,
parties filed a petition under Section 13B of the Hindu Marriage
Act, 1955 (hereinafter referred to as ‘the Act of 1955’) seeking
decree of divorce on the basis of mutual consent. In the said
proceedings, it was settled between the parties that the minor
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daughter, who was born on 14.01.2007, would remain in the
custody of the appellant. Thereafter, respondent moved a petition
(Annexure-2) under Section 25 of the Guardians and Wards Act,
1890 (hereinafter referred to as ‘the Act of 1890’) seeking custody
of the minor child. Said petition was disposed of vide order dated
09.12.2017 (Annexure-3). It was agreed that the respondent
would be entitled to meet the minor daughter once in a month for
three hours. However, another petition (Annexure-5) under
Section 25 of the Act of 1890 had been moved by the respondent
seeking custody of the minor child. Since, the first petition moved
by the respondent had already been decided, respondent was
estopped from moving second petition seeking custody of the
minor child.
Learned counsel for the respondent has opposed the
appeal and has submitted that the petition moved by the
respondent under Section 25 of the Act of 1890 was still pending.
Hence, present appeal was liable to be dismissed.
Facts in the present case are not in dispute.
Admittedly, parties got married on 03.03.2006 and out of the said
wedlock, a daughter was born to them on 14.01.2007. Thereafter,
the parties moved a petition under Section 13B of the Act of 1955
seeking decree of divorce on the basis of mutual consent. A
perusal of the judgment/decree dated 05.02.2015 passed under
Section 13B of the Act of 1955 reveals that it had been agreed
between the parties that custody of the minor child would remain
with the appellant. Thereafter, respondent got remarried.
Respondent moved a petition under Section 25 of the
Act of 1890 and the said petition was disposed of vide order dated
09.12.2017 (Annexure-3). A perusal of the said order reveals that
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it was agreed between the parties that respondent would be
entitled to meet her daughter once in a month for three hours and
appellant would not obstruct the respondent from meeting her
child once in a month. It was further agreed between the parties
that before meeting her minor daughter, the respondent will
inform the appellant three days prior to the date of her visit. It
was also agreed that respondent would not take the minor child
out of Jaipur City. Respondent would be entitled to talk to the
child on phone on the occasion of her birthday and other festivals.
Now the respondent has again moved second petition
(Annexure-5) under Section 25 of the Act of 1890.
Appellant moved an application before the Family Court
that the second petition under Section 25 of the Act of 1890 was
not maintainable as the earlier petition moved by the respondent
had already been decided vide order dated 09.12.2017
(Annexure-3). Said application moved by the appellant has been
erroneously dismissed by the Family Court vide impugned order as
the matter regarding custody of child and visiting rights of the
respondent had already been decided between the parties.
At the time of taking divorce on the basis of mutual
consent, respondent had agreed that the custody of child would
remain with the appellant. During the course of arguments, it has
transpired that, although, respondent had got remarried but the
said marriage had also been dissolved. It appears that after the
second marriage of the respondent failed, she thought of seeking
custody of the minor child. Since the decree of divorce under
Section 13B of the Act of 1955 had been passed between the
parties on the basis of their mutual consent and the order dated
09.12.2017 (Annexure-3) had already been passed on a petition
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filed by the respondent under Section 25 of the Act of 1890, in
view of consent of the parties, second petition (Annexure-5)
moved by the respondent under Section 25 of the Act of 1890 was
not maintainable.
Hence, keeping in view the facts and circumstances of
the case, appeal is allowed. Petition (Annexure-5) filed by the
respondent under Section 25 of the Act of 1890 is dismissed being
not maintainable.
(NARENDRA SINGH DHADDHA),J (SABINA),J
MANOJ NARWANI /46
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