A minor is considered to be a person who is physically and intellectually imperfect and immature and hence needs someone's protection. Another theory of divorce is that of mutual consent. Therefore, in substance the jurisdiction exercised under Article 226 and under Article 227 are substantially a revisional jurisdiction. If the men folk could remarry and the children could carry on with the father then how it would be conceived to be a taboo if the wife remarries and the child or children carries with her. She is not allowing me to see my son even during his illness also. What does this paramountcy of welfare means? On the other hand, it was clearly a miscellaneous proceeding as asserted by the counsel for the opposite party under Section 26 of the Hindu Marriage Act filed in connection with the said Original Matrimonial Case No.
I do not think a stepmother, however anxious to do her best for the children, can take the place of the mother. The authorities are not always consistent and the way along which they have moved towards a broader discretion had many twists and turns. Therefore, it has to be looked into as to how far the contention of the counsel for the opposite-party works in favour of his contention or against that of the counsel for the petitioner. The High Court is in possession of different jurisdictions under Article 226 and under Article 227. The power under Article 227 is exercised by the Court in its discretion and cannot be claimed as of right by any party. He granted a decree of divorce in favor of the present appellant against the respondent. Where the application for custody of her minor male child below the age of five years has been made by the wife in the course of proceeding for judicial separation instituted by her, the custody should be entrusted to her unless there are special circumstances suggesting that the welfare of the minor demanded otherwise.
Hence it is a case where the Court has to exercise one or the other of the modes if one does not apply and the other does. Therefore, the amendment should be allowed. Therefore, even if the High Court in its discretion thinks it can interfere with the matter is exercise of its power of superintendence, there the conversion would not affect materially the jurisdiction conferred on the High Court itself which is already in existence. The child was born only in March, 1982 whereas the ex parte decree was obtained on 5th May, 1982. The husband has alleged that he was not aware of the birth of the child till 1991. In such cases, he contends that though the Court has jurisdiction to convert the one into the other, the Court should not exercise its discretion in favour of the petitioner which he had deliberately given up earlier.
Accordingly Arvind Kumar had withdrawn the cases. While exercising writ jurisdiction, the High Court exercises its power of revision. The order under Section 26 as has been made appealable under Sub-section 2 passed in proceeding under the Hindu Marriage Act indicates by reason of expression used in the said Sub-section 2 that the said order is to be passed as contemplated within the meaning of Section 26 only when the same is an interim order. When the marriage breaks down their custody becomes the subject of a court order. There is no clear definition of the matrimonial offence of adultery.
Here by reason of amendment, no jurisdiction is created. In the present case, neither under Article 226 or under Article 227, there is any provision provided for limitation. The rights and wishes of parents must be assessed and weighed in their bearing on the. It is a settled principle of law that the paramount consideration for the custody of a minor child is the welfare and well being of the child and other considerations are subordinate. Each is attacking the other. In the present case two orders have been challenged one dated 31st May, 1993 and the other 26th October, 1991.
The Family Court cannot assume jurisdiction in respect of any other proceeding. But, Manu does not believe in discontinuance of marriage. They were not sent to school in clean and properly pressed school dress. The mere fact that the plaintiffs did not move should not stand in the way of this Court making an order in accordance with law, as all the necessary parties are represented before us. But the power under Article 227 may be exercised by the Court also suo motu See Hari Vishnu Kamath v.
The parental rights are on the decline. In case of a child of tender age, care of the child will be taken much better if he is kept with his mother. Prior to the Hindu Marriage Act of 1955, there was no provision for divorce. Neither any provision with regard thereto was incorporated in the decree. Therefore, the amendment should be allowed.
The section gives a wide discretion to the Court to make such orders as it may deem just and proper and whenever a marriage is dissolved or an order for judicial separation is made, it becomes the duty of the Court to take into consideration the welfare of the children which is of the paramount importance. Govind Krishna contends that the jurisdiction under Article 220 and Article 227 are altogether different. The husband objected to the visits of Mr. Subject to the objection taken on the question of maintainability of the writ petition and its conversion into one under Article 227, the amendment as a whole is hereby allowed and shall be deemed to be incorporated in the writ petition. She says that she does not intend to remarry. Therefore, orders in this respect are to be passed with due, care and caution having regard to the facts and circumstances of the case.
The order, however, refers to an order dated 5th September, 1991, wrongly printed as 5th September, 1993, passed by the Apex Court but no such order is being produced before this Court. . Also, it follows that unless one willingly consents to the act, there can be no adultery. On 25th April 1997, both the learned counsel pointed out that the matter was fixed on 24th April, 1997 but by mistake the date was noted as 12th May, 1997 in the order dated 9th April, 1997. It seems to us that when the Rule comes up for final hearing before this Court, it is open to this Court, if it finds that the Rule should succeed on some ground, not initially taken, or on a ground, which it was not issued that is, on a ground other taken the one, on which it was issued to consider the same and allow the application after of course, giving other party proper opportunities to meet the said objection.
Therefore, in the facts and circumstances, of the case, the application under Article 226 of the Constitution of India is not maintainable against the orders impugned. The Court, it seems to us, is not so powerless and its powers are not so limited as to preclude it from doing justice between the parties in the exercise of its revisional powers, merely because the Rule was not issued at the initial stage on the particular ground or grounds concerned. He submitted that in view of the statements made in the application for amendment which is a belated one, he does not propose to file any counter affidavit to the said application for amendment. The order impugned or any other order does not show that the wishes of the child was taken into account. Section 26 is directed to equalise the legal rights or claims of the parents, and seeks to achieve an equality between the sexes in relation to custody of minors.