Section 25 -- Code of Civil Procedure, 1908 (V of 1908), Order 7 Rule 11 – Special Marriage Act, 1954 (43 of 1954), Section 28, 38 -- Hindu Minority and Guardianship Act, 1956 (32 of 1956), Section 6 -- Suit for custody of child -- Rejection of plaint – Consideration of pleading other than plaint – Permissibility of – Previously divorce by mutual consent between the parties – Voluntarily statement of father for giving the custody of the child to the mother -- Though it is well settled principle of law that for the purpose of deciding an application under Order VII Rule 11 CPC, the contents of the plaint/petition is to be seen, however it is a case of not deciding the rights of the parents but the custody of minor child, therefore welfare of the child should be the paramount consideration -- Circumstances from the date of birth of the child till date needs to be appreciated -- Respondent-husband has remedy to approach the said Court, which has passed the decree of divorce if any terms and condition were violated -- Petition u/s 25 of the Guardian and Wards Act held not maintainable and rejected, leaving the respondent-husband to avail alternative remedy, in accordance with law -- Application under Order VII Rule 11 C.P.C. allowed.
(P&H HC) Reserved on : 01.09.2022 Pronounced on : 06.09.2022
