Valmiki J. Mehta, J.:—
1. For the reasons stated in the application the delay in re-filing the appeal is condoned.
2. CM stands disposed of.
CM Nos. 14591-92/2011 (Exemption)
3. Exemptions allowed subject to just exceptions.
4. CMs stand disposed of.
FAO No. 346/2011
5. Whether the contents of a guardianship petition, have to be necessarily accepted as correct, without issuing notice to the only necessary party, is the issue in the present case. A very strange and perplexing stand is raised by the appellant that guardianship of the minor child be given to her because the marriage did not take place and the father therefore is not the competent person to be appointed as a guardian. The trial court has dismissed the petition on the ground that mere publication to the general public is not enough because in such a case, the appellant/petitioner ought to have given the name, address and other particulars of the father of the child, and which, admittedly and obdurately the appellant refused to give and therefore the Guardianship Judge dismissed the guardianship petition.
6. Surely, when a petitioner in a guardianship petition alleges that there was no marriage, surely, this aspect can only be decided after notice is issued to the natural father. It is necessary that notice be issued to the father because there are grave repercussions in accepting the contention of the appellant/petitioner, inasmuch as, the child would be an illegitimate child if there is no marriage. Whether or not there is marriage, the same can be known only after the natural father is served, and who could not be served, in the face of the unfortunate stand of the petitioner/appellant that the name, particulars and the address of the father will not be supplied. Also, even assuming that there is no marriage, the natural father would also have an interest in the welfare/custody of the child and also the child's guardianship.
7. It is a fundamental principle of law that no case can be decided in the absence of a necessary party. Non-joinder of a necessary party is fatal to a case. Surely, the father is a necessary party to the case and the petitioner/appellant cannot be allowed to get a decision in her favour merely by impleading the State as the respondent i.e, without making the natural father as a respondent in the case and serve him.
8. Learned counsel for the appellant obviously has no answers to the issues which were posed by the Guardianship Court and also by this court with regard to non maintainability of the petition without the father having been impleaded and served. Possibly I can say that the appellant/petitioner is not being appropriately advised.
9. I, therefore, do not find any merit in the appeal and the same is dismissed.