The Judgment of the Court was delivered by

Krishnan, J.:— These two Appeals are directed against the common Judgment passed by the Family Court, in two proceedings initiated before it under the provisions of the Guardians and Wards Act, in respect of the custody of one Varun, a minor child. G & W.C No. 73/87 was filed by the grand-parents of the said Varun to appoint them as guardians of their grand-child and G & W.C No. 75/87 was filed by the father of the said Varun to get custody of his son. The first Petition came to be dismissed and the second Petition came to be allowed and therefore, the grand-parents who happen to be the petitioners in the first Petition and respondents in the second Petition have preferred these Appeals.

2. The evidence has been recorded in the first petition G & W.C No. 73/87 and in the lower Court the parties have been referred to by virtue of the ranks they had occupied in the 1st Petition. For the sake of convenience we will also adopt the same course of reference to the parties, by virtue of their ranks occupied in G & W.C No. 73/87 or by virtue of their relationship as occasion may demand.

3. Certain factual events leading up to the filing of the Petitions are practically undisputed, though the parties are at variance in respect of the cause or reasons which led up to the said events. We would in the first instance refer to the undisputed events. Usha the daughter of the petitioners was married to the respondent on 15-7-79. Both the respondent and his wife Usha lived together at Calcutta where the respondent was working during the said time till 23-12-79, on which date she left her matrimonial home to Bangalore to reside with her parents. By that time she had become pregnant and on 7-7-80 she gave birth to Varun a male child. Both Usha and her husband respondent filed a joint Petition for divorce by mutual consent in the Court of the City Civil Judge, Bombay, in M.J.P 844/82. On 29-4-82 the Bombay City Civil Court passed the order. It reads:

“The Petitioner No. 1 Kongot Ravindran Unni and the Petitioner No. 2 Usha Ravindran Unni jointly pray for a decree of divorce dissolving their marriage solemnized on the Fifteenth day of July one thousand nine hundred and seventy nine at Guruvayurappan Temple, Asthika Samaj, Matunga, Bombay, according to the Hindu Vedict Rites and for an order that the custody of the minor child named Varun do remain with the Petitioner No. 2 and that the Petitioner No. 1 be permitted to see and visit the said minor child at the residence of the Petitioner No. 2 whenever the Petitioner No. 1 desires to do so after giving adequate notice of the date and time of his intended visit to the residence of the Petitioner No. 2 to see the child and for a declaration that the Petitioner No. 2 gives up her claim permanently for the maintenance and/or alimony for herself and for the said minor child Varun and for such other and further orders and directing as may be just equitable and necessary in the circumstances of the case and the Petition being this day called on for hearing and final disposal, the Petitioners appearing by Advocate and upon the Advocate for the Petitioners tendering the Affidavit of the Petitioner No. 1 Kongot Ravindran Unni, herein dated the Nineteenth day of April one thousand nine hundred and eighty two the affidavit of the Petitioner No. 2 Usha Ravindran Unni herein dated the Fifteenth day of April one thousand nine hundred and eighty two reaffirming the consent of the Petitioner to the divorce and applying that the same may be taken on file and upon the said Advocate for the Petitioners stating that the Petitioners have been living separately for a period of more than one year before the date of filing of the Petition that the consent of the Petitioners to the divorce continues and that neither of the Petitioners has withdrawn their consent AND UPON READING the said Affidavits of the Petitioner No. 1 herein dated the Nineteenth day of April one thousand nine hundred and eighty two and the Petitioner No. 2 herein dated the Fifteenth day of April one thousand nine hundred and eighty two AND THIS COURT BEING SATISFIED that the consent of the either of the Petitioners has not been obtained by force, fraud or undue influence THIS COURT DOTH PASS JUDGMENT for the Petitioners AND DOTH ORDER AND DECREE that the marriage between the Petitioner No. 1 Kangot Ravindran Unni and the Petitioner No. 2 Usha Ravindran Unni solemnized on the Fifteenth day of July one thousand nine hundred and seventy nine at Guruvayurappan Temple, Asthika Samaj, Matunga, Bombay according to the Hindu Vedic Rites be and the same is hereby dissolved on the ground of mutual consent of the Petitioners herein, AND THIS COURT DOTH FURTHER ORDER that the custody of the minor child Varun shall remain with the Petitioner No. 2 AND THIS COURT DOTH FURTHER ORDER that the Petitioner No. 1 be and he is hereby permitted to see and visit the said minor child Varun at the residence of the Petitioner No. 2, whenever the Petitioner No. 1, desires to do so after giving adequate notice of the date and time of his intended visit to the residence of the Petitioner No. 2 to see the said child.”

(underlining by us)

As can be seen from the contents of the order there was a decree dissolving the marriage between Usha and the respondent and further an order was passed giving custody of the child Varun to Usha with visiting rights to the respondent. After wards, the child was in the custody of Usha till February 1984, when she died of cancer. Thereafter, the said Varun is in the custody of its grand-parents the petitioners. Usha during her life time created a trust for the benefit of her son Varun and she also left a Will appointing her parents as guardians of her son and the said Will came to be probated. Thereafter, the two Petitions referred to already have been filed by the grand-parents as also the father, before the Family Court, Bangalore.

4. On behalf of the petitioners their learned Advocate Mr. Rego advanced the following contentions:

(1) It was contended that in view of the fact that the City Civil Court, Bombay at the time of dissolution of the marriage of Usha with the respondent had passed orders regarding custody of Varun under Section 26 of the Hindu Marriage Act, if any party wants any further orders regarding custody of Varun, he was to approach only that Court under Section 26 and in that view of the matter, both the petitions filed before the Family Court, Bangalore were not maintainable and deserve to be dismissed.

(2) That the Petition filed by the respondent under Section 25 of the Guardians and Wards Act, is not maintainable because even on the very undisputed facts, he did not have custody of the ward Varun at any time and therefore, there could be no question of the ward leaving or being removed from the custody of the guardian within the meaning of Section 25 of the said Act.

(3) That the petitioners have been appointed as the testamentary guardians of minor Varun by Usha to whose custody the child was given as per the orders passed by the City Civil Judge, Bombay, and therefore, there is no question of Varun being removed from the custody of the guardian within the meaning of the said Section 25.

(4) That, right from the beginning, the respondent father had not evinced any kind of interest in the minor child and every since the birth, the child has been living with its grand-parents and it has also expressed its desire to continue with the grand-parents and irrespective of the rights of the parties, having regard to the paramount consideration of the welfare of the minor child, custody should be continued with the grand-parents.

5. The grand-parents had not raised any point relating to jurisdiction before the Family Court and even in the course of the Memorandum of Appeal, they had not put forward any such ground but nevertheless, as it is a pure question of law, they were permitted to raise an additional ground in that regard for the first time before this Court.

6. We will take up for consideration the point pertaining to the jurisdiction of the Family Court to entertain these Petitions. Section 26 of the Hindu Marriage Act, under which orders were passed by the City Civil Judge, Bombay, giving custody of minor Varun to Usha reads as hereunder:

“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 proceedings for obtaining such decree were still pending, and the Court may also from time to time revoke, suspend or vary any such orders and provisions previously made.”

(emphasis supplied)

Under this provision, the City Civil Judge, Bombay, had the necessary jurisdiction to pass the order giving custody of Varun to its mother has not been disputed. A mere look at the Section itself would indicate that even after decree, the very same Court before whom the proceeding has been initiated under this Act, is entitled to pass such orders with respect to the custody and maintenance and education of such children as might have been made by such decree as if the proceedings culminating in the decree are still pending. Therefore, the City Civil Judge, Bombay, before whom the divorce proceedings were initiated by the consent petition of both Usha and her husband respondent could also pass appropriate orders regarding custody and other aspects pertaining to the minor even after the decree, as if the proceeding was still pending. Section 4 of the Hindu Marriage Act which refers to the overriding effect of this Act reads as hereunder:—

“Save as otherwise expressly provided in this Act.-

(a) any text, rule or interpretation of Hindu Law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act;

(b) any other law in force immediately before the commencement of this Act shall cease to have effect in so far as it is inconsistent with any of the provisions contained in this Act.”

It may be remembered that the Hindu Marriage Act came into force with effect from 18th May, 1955 and the Guardians and Wards Act is of the year 1890 and Guardians and Wards Act under which the jurisdiction of the Family Court has been invoked in the two proceedings is of the year 1890 and it is the law which was in force immediately before the commencement of the Hindu Marriage Act. It has to be seen whether the several provisions under the Guardians and Wards Act under which the two proceedings have been initiated before the Family Court are inconsistent with Section 26 of the Hindu Marriage Act, especially in the background of the proceeding having been initiated under the said Act for divorce, or whether the aggrieved parties could move both the Courts under Section 26 of Hindu Marriage Act as also under the Guardians and Wards Act. If in respect of the same relief the parties could approach two different Courts under two different enactments, it would be practically providing parallel remedies and there would be scope for conflict of decisions also of the two separate Courts in respect of the same subject matter but under two different enactments.

7. In a similar situation, where the custody of the minor children had been entrusted to their mother in a proceeding under the Indian Divorce Act, in which also we find there are Sections 41 and 42 which enable the Court in which the proceeding under the said Act is initiated to pass appropriate orders both before and after decree regarding custody of children, the matter had come up for consideration before the Supreme Court in the Decision in Rosy Jacob v. Jacob A. Chakramakkal. . AIR 1973 SC 2090.. There the custody of the children had been entrusted by the Court before which the proceeding under the Indian Divorce Act was pending, to the mother and when the father sought for relief under the Guardians and Wards Act, this is what was observed by the Supreme Court at page 2099:

“With respect to Mahesh alias Thomas, however, the Court under the Divorce Act is at present empowered to make suitable orders relating to his custody, maintenance and education. It is, therefore, somewhat difficult to impute to the Legislature an intention to set up another parallel Court to deal with the question of the custody of a minor which is within the power of a competent Court under the Divorce Act.”

It may also be incidentally noticed that in connection with the said case, the Indian Divorce Act was earlier in point of time to the Guardians and Wards Act and there is no provision in the Indian Divorce Act giving overriding effect to its provisions in such matters analogous to Section 4 of the Hindu Marriage Act. Despite the same, the Supreme Court in its Decision has observed that Legislature could not be imputed with the intention of setting up two parallel Courts to deal with the same question of the custody of the minor. If that be so in such a context, the learned Advocate for the petitioners grand-parents is on a much firmer footing in the present case, especially when the Hindu Marriage Act is the later enactment, later in point of time to the Guardians and Wards Act, and further also because of the overriding effect given to the provisions of the Hindu Marriage Act by Section 4.

8. In somewhat similar circumstances, where there was a decree for divorce granted under the Special Marriage Act and under that decree the wife was required to make the child available to the husband every Sunday for two hours at the agreed place and there was non-compliance of that direction, when the husband approached the Court under the Guardians and Wards Act, the Calcutta High Court in the Decision in Sm. Sibani Banerjee… v. Tapan Kumar Mukherjee…. . AIR 1990 Calcutta 4. pointed out that the remedy for the husband was not under the Guardians and Wards Act, but he had to approach the particular Court under the Special Marriage Act for enforcement of the direction given in the decree. Therefore, it appears to us that once the parties have approached the appropriate forum for dissolution of their marriage and have also obtained an order regarding custody of minor child Varun from the said Court, for any remedy pertaining to the custody of the child in alteration of that direction, the parties should approach only the Court before whom the proceeding under the Hindu Marriage Act was initiated for divorce. In such a context several Sections of the Guardians and Wards Act which would in the ordinary course have been available to the parties to have redress would be unavailable to the parties, especially in view of orders having been obtained from the Court before whom the proceeding under the Hindu Marriage Act was initiated and decided.

9. It was contended by the learned Advocate for the father that by the death of Usha there is complete change and the order passed by the City Civil Court, Bombay, has come to an end and the several circumstances referred to already cannot in any way prevent his client to approach the Court under the Guardians and Wards Act and in that view of the matter, the question relating to jurisdiction must be decided against the grand-parents.

10. It may be noticed that Section 26 of the Hindu Marriage Act makes provision for obtaining orders from the Court in which any proceedings under the said Act had been initiated, even after the decree with respect to the custody, maintenance, etc. of the children and the Court is bound to inquire into the said matter as if the proceedings for obtaining such decree were still pending. It may be noticed that it is not the case of any of the parties that the learned City Civil Judge, Bombay, had made only provision for custody of the child even after the death of Usha. If that has not been done and if still during the minority of Varun, Usha has died, the said Court could make appropriate orders regarding custody of the child even after the death of Usha, as if the proceedings for obtaining the decree were still pending. The later portion of Section 26 of the Hindu Marriage Act enables the said Court before whom the proceeding was pending earlier, to make such orders and provision with respect to the custody of the child even subsequently and therefore, it cannot be said that the said Court cannot give the relief to the parties subsequent to the death of Usha. If the Court before which the proceedings under the Hindu Marriage Act for dissolution of the marriage were initiated has the jurisdiction even after the decree, to give appropriate directions regarding the custody of the minor child whether it is before or after the death of Usha, having regard to the Decision of the Supreme Court as also Section 4 of Hindu Marriage Act it has to be held that the appropriate provisions of the Guardians and Wards Act are inconsistent with Section 26 of the Hindu Marriage Act in such a situation and therefore, the remedy under the Guardians and Wards Act is unavailable to the parties in such a context.

11. It was urged on behalf of the father respondent that before the Family Court no plea regarding lack of jurisdiction had been taken by the grand-parents and on the other hand, they had in fact moved the Family Court for appointing them as guardians and it has been raised for the first time before this Court and in view of the Decision of the Supreme Court in Pathumma v. Kuntalan Kutty . AIR 1982 SC 1683. it is not open to the grand-parents to take such a contention and the same deserves to be repelled. It may be noticed that the Supreme Court in this Decision was concerned with the aspect relating to Section 21 of the Code of Civil Procedure which in turn refers to the objection as to the place of suing and the said Section appears immediately after Section 20 wherein there is a choice for the plaintiff to institute the suit in more than one Court coming within the purview of sub-clauses (a) (b) and (c). It is in that connection that when objection was taken to the territorial jurisdiction of the Court for the first time in appeal, it was pointed out that all the three conditions mentioned under Section 21 CPC. must co-exist and only in such a case the objection as to the place of suing could be entertained by the Court of appeal or revision. This is not a case where the objection relating to Family Court is being taken on the ground of place of suing. The objection is on account of the fact that there was already an order passed by the learned City Civil Judge, Bombay, in the proceeding initiated before him under the Hindu Marriage Act by the parents of the minor child and in that proceeding an order had been passed as provided under Section 26 of the Hindu Marriage Act and therefore, for any further alteration in that regard the parties and to approach only the learned City Civil Judge, Bombay and that the remedy under the provisions of the Guardians and Wards Act is unavailable to the parties in such a context. If that be so, then neither Section 21 of the Code of Civil Procedure nor the Decision pressed into service by the learned Advocate for the father could be of any assistance to hold that the Family Court has jurisdiction to entertain the Petitions under the Guardians and Wards Act in this particular context.

12. Therefore, it is crystal clear that the parties have to approach only the learned City Civil Judge, Bombay, before whom the proceeding under the Hindu Marriage Act had been initiated and who had passed the orders regarding custody of minor child Varun, to get redress in that regard. In that view of the matter, it has to be held that both the Petitions filed by the grand-parents and the father before the Family Court invoking its jurisdiction under the Guardians and Wards Act were liable to be dismissed solely on the ground of want of jurisdiction and if that be so, it is quite unnecessary to embark upon any further discussion on the several other points urged on behalf of the grand parents. Therefore, it is clear that the orders passed by the Family Court in both the cases should be set aside and in its place it should be held that both the Petitions shall stand dismissed for want of jurisdiction.

13. In the result, M.F.A 1475/90 is allowed and M.F.A 2035/90 is dismissed. Both the Petitions filed by the grand-parents and the father before the Family Court shall stand dismissed.