S.C. Mohapatra, J.@mdashThis is a Civil Revision u/s 48 of the Guardian and Wards Act (for short, ''the Act'') read with Section 115 of the CPC (for short, ''the Code'').
2. Undisputably, petitioner is the wife and opposite party is her husband. Both are Hindus. They have a child aged about 5 years. Husband filed an application for dissolution of marriage in the Court of the Subordinate Judge, Bhubaneswar, which is the district Court as defined under the Hindu Marriage Act. This proceeding is continuing and it is slated that husband has examined himself as a witness. During the pendency of the matrimonial proceeding husband filed an application u/s 7 of the Act for guardianship of the child. Wife entered appearance in that proceeding and prayed that the proceeding should be stayed since the points on which the guardianship is sought are also the points for dissolution of marriage and there may be inconsistency in findings of both the forums.
3. Learned District Judge has rejected this application on the findings that the proceeding under the Act is not a suit and Section 10 of (be Code is not applicable.
4. This is the grievance of the petitioner in the present Civil Revision.
5. It is not disputed that many of the facts asserted in the application for dissolution of marriage have also been asserted in the application for appointment of guardian which have been controverted by the wife. In view of the controversy, findings on the facts would be necessary to be given to examine whether they are materials either for the purpose of dissolution of marriage or for appointment of guardian. Although Section 10 of the Code in terms would not apply to a proceeding under the Act, Court while considering such question is to keep in mind the interest of the parties for better adjudication of the questions. u/s 14 of the Act clear provision has been made that in case of such proceedings in two forums and it is brought to the notice of one of the forums that such a proceeding is pending in another forum, it would stay the proceeding before itself. If both the forums are Courts subordinate to the High Court, reference is to be made to the High Court to determine as to which of the Court would continue the proceeding with respect to appointment and declaration of a guardian of a minor.
Section 14 of the Act reads as follows :
"14. Simultaneous proceedings in different Courts-
(1) If proceedings for the appointment or declaration of a guardian of a minor are taken in more Courts than one, each of those Courts shall, on being apprised of the proceedings in the other Court or Courts, stay the proceedings before itself.
(2) If the Courts are both or all subordinate to the same High Court, they shall report the case to the High Court, and the High Court shall determine in which of the Courts the proceedings with respect to the appointment or declaration of a guardian of the minor shall be bad.
(3) In any other case in which proceedings are stayed under Subsection (1), the Courts shall report the case to and be guided by such order as they may receive from their respective State Governments."
6. Mr. B.H. Mohanty, learned counsel for petitioner, has brought to my notice provision of Section 26 of the Hindu Marriage Act where it is provided that the matrimonial Court dealing with the proceeding has been vested with the power to pass such interim orders and made such provision in the decree, as it may deem just and proper, with respect to the custody, maintenance and education of minor children.
7. Section 26 of the Hindu Marriage Act reads as follows : /
"26. Custody of children-In any proceeding under this Act, the Court may, from time to time, pass such interim orders and make such provisions in the decree as it may deem just and proper with respect to the custody, maintenance and education of minor children, consistently with their wishes, wherever possible, and may, after the decree, upon application by petition for the purpose, make from time to time, all such orders and provisions with respect to the custody, maintenance and education of such children as might have been made by such decree or interim orders in case the proceeding for obtaining such decree were still pending, and the Court may also from time to time revoke, suspend or vary and such orders and provisions previously made."
8. When the Act was enacted in the year 1890, there was no statute like Hindu Marriage Act. Now -after coming into force of the Hindu Marriage Act, power has been vested in the matrimonial Court to give directions with respect to custody, maintenance and education of a child. This is part of the duty of a guardian to be appointed by the Court under the Act. Thus, a proceeding under the Hindu Marriage Act with regard to custody, maintenance and education of a child would be a proceeding '' envisaged u/s 14 of the Act and in case it is brought to the notice of the district Court where the guardianship proceeding is pending that such a proceeding is also pending before a matrimonial Court, it would stay its hands as provided u/s 14(1) of the Act.
9. If an application for custody, maintenance or education of a child would have been pending before the matrimonial Court, I would have no difficulty in directing the district Court to stay the proceeding as provided under Section. 14(1) of the Act since it does not appear from the impugned order that the district Court has taken note of Section 14 of the Act. Failure to take notice of a relevant provision is a material irregularity in exercise of jurisdiction and the order is vulnerable on (bat account.
10. Since it is not disputed that the matrimonial Court has not proposed to exercise the power u/s 26 of the Hindu Marriage Act, Section 14 of the Act by itself would not be applicable. However, to attract the provisions of Section 14 of the Act filing of an application by wife would be sufficient. Law is never intended to be technical in these matters. I am not able to appreciate why the husband who initiated the proceeding under the matrimonial Act, did not choose to approach the matrimonial Court for custody of the child but preferred to approach the district Court. However, choice of a litigant unless motivated cannot be said to be bad. In that view of the matter, I am of the opinion that the District Judge has rightly rejected (he application for stay.
11. Once it has come to my notice that findings may have to be given on the self-same facts by both the forums and the matrimonial Court would not be competent to deal with the guardianship of the child under the Act whereas (he District Judge is competent to deal with the matrimonial proceeding, ends of justice demands that both the proceedings ought to be in the same forum of the District Judge. On account of this, recording of evidence need, not be arrested in the event it is continuing. However, I direct the District Judge to get the matrimonial proceeding transferred from the Court of the Subordinate Judge to his Court and give finality to both (he proceedings by passing appropriate order as the evidence would require. Counsel for the parties have no objection to it. My order would also be consistent with the power of a High Court intended u/s 14(2) of the Act.
12. In result, the Civil Revision is disposed of with the directions aforesaid. There shall be no order as to costs.
