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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