Vyas Dev Misra, C.J.
1. This appeal under Section 28. Hindu Marriage Act (referred to as the Act), is directed against the judgment of District Judge. Simla, giving the custody of the child to his mother.
2. Shri Perminder Lal Sarin (referred to as the husband) filed a petition for divorce against Shrimati Suman Lata (referred to as the wife) under Section 13 of the Act. During the pendency of the proceedings the wife made an application under Section 26 of the Act for the custody of her son Rinkoo aliasDaman Sarain. The child was born on 7th April, 1979 and he had not yet completed four years when the application was filed. It was averred that the husband had removed the child in connivance with his old mother from the custody of the wife and had removed him from Shimla. Various allegations against the husband were made to show that he was not fit enough to have the custody of the child. The husband averred that the wife was a 'chronic patient of fits and due to her said ailment she is totally incapable in looking after the child. Only due to the said reasons right from the beginning the respondent and his mother have been looking after and maintaining the child.' It was also denied that the husband had removed the child from the custody of the wife. It was however, stated that the child had to be sent to Delhi where he was properly looked after and maintained by the mother of the husband.
3. In support of the application the wife examined herself. She deposes thatwhen the differences arose between the couple, she was sent to her parents house by the husband, and she took Rinkoo with her. It was stated that one day the child was taken bv the husband to his house on the pretext that his mother wanted to meet the child and thereafter the child was removed to Delhi and never brought back. She alsodeposes that she had been looking after the child ever since his birth and till his removal to Delhi, she was not cross examined at all. The husband also went in the witness box. He stated that the wife was suffering from epilepsy and, therefore, she was not capable of looking after the child. He produced medical chit Ex. RA of Safdarjang Hospital, New Delhi. The provisional diagnosis was of 'G. M. epilepsy.'
4. It is unfortunate that whenever a marriage falls apart the children are the worst sufferers. Where the only child is loved equally by the spouses who, in turn, are equally loved by the child, the plight of the child is pitiable indeed. The fight for possession of the child sometimes becomes so bitter that it reminds me of two children fighting desperately for the possession of a single toy. The position in the present case is no better. I have talked to the child in my chamber and have seen his conduct in the open court. Though of a very young age the child is rather intelligent.
In the court I noticed that the child was going freely sometimes to his mother, sometimes to his father, and sometimes to the father's mother. He was feeling at home with everyone. I have no doubt that everyone loves him as it should normally be,
5. Before I proceed further, certain relevant facts may be noticed. The statements of the parties were concluded on 24-11-1982. Thereafter on 14-1-1983 the case was adjourned to enable the parties to arrive at a compromise. The husband was directed to produce the child on the next date of hearing and the case was adjourned to 24-3-1983. At the request of the parties the case was again adjourned to 213-3-1983 and then to 16-4-1983. On the last date of hearing the counsel for the husband asked for time to produce the child who was stated to be ill at Delhi. Time was granted. When the matter came up on 2-6-1983, the husband decided to absent himself. His. counsel was also absent. The order was announced and the husband was directed to hand over the child to the wife. The learned District Judge has noticed in his judgment that in reply to the application the husband categorically stated that in case the wife gave an assurance that she or her parents would not forcibly remove the child from husband's custody then he would definitely keep the child at Simla and would provide him best education. The wife accepted this offer and even agreed to bear half the educational expenses Of the child if he was put in a residential school. But the husband did not produce the child in court and decided to absent himself.
6. Mr. Vaid, learned counsel for the husband, contends that the District Judge had no jurisdiction to pass the final order on the application under Section 26 of the Act since the petition for divorce was dismissed because of the absence of the husband. He submits that the word 'decree' used in Section 26 means the decree when the relief is given to the applicant as is referred to in Section 23. I am afraid I cannot agree. Section 23 lays down the circumstances under which a relief can be granted. The terminology of Clause (e) of Sub-section (1) of Section 23 in which the relevant phrase has been used reads as under:
'23. (1). In any proceeding under this Act, whether defended or not if the court is satisfied that:--
XX XX XX XX XX XX (e) There is no other legal ground why relief should not be granted, then, and in such a case but not otherwise, the court shall decree such relief accordingly.'
7. To me it is obvious that the word 'decree' has been used as defined in the ordinary dictionary. Oxford Advanced Learner's Dictionary of Current English defines the word 'decree' thus : '1. Order given by a ruler or authority and having the force of law: issue a; rule by 2, judgment or decision of some law courts a of divorce; a in bankruptcy.' It is for this reason that appeal lies against the order of the court dismissing a petition for divorce judicial separation etc. The word 'decree' has not been defined in the Act. However, Section 28 makes all the decrees passed by the court in any proceedings under the Act to be appealable as decrees of the court made in the exercise of its original civil jurisdiction. Under Sub-section (2) of Section 28 final orders made under Sections 25 and 26 have been made appealable as decrees. It may be noticed that Section 21 of the Act makes the Civil P. C. applicable to all proceedings 'under' this Act subject to other provisions of the Act and the rules which the High Court may make in this behalf. In other words, the connotation of the word 'decree' as used in the Act is the final determination of the matter in controversy between the parties.
8. I find that a Division Bench of the Bombay High Court in Shakuntalabai v. Sahebrao Rama Bhau Pawar, ILR (1978) Bom 127, took the view:--
'The word 'decree' in Section 25, Hindu Marriage Act can mean only a final order adjudicating upon the rights of the parties to a petition under the Hindu Marriage Act and it must, therefore, include a decree dismissing the petition which is appealable in the same way as the decree granting divorce or judicial separation and restitution of conjugal rights or annulment of the marriage. We are unable to find any reason for holding that the decree which is contemplated in Section 25 is only a decree granting the relief asked for in a petition and not one dismissing a petition.'
9. It is apparent from the order passed under Section 26 of the Act that it is not an interim one bat is a final order. The court had the jurisdiction to pass the same as the divorce petition was pending. Simply because the divorce petition was dismissed ex parte because of the failure of the husband and his counsel to be present at the time of hearing of the petition, it does not mean that the order of the court becomes void on account of lack of jurisdiction.
10. The cardinal principle which hasto be borne in mind while deciding the question about the custody of a child is the welfare of the child. The facts and circumstances of each individual case have to be kept in view while deciding this question. The evidence on record in this case leaves no doubt that the child had been consistently with the mother for a long time when it was removed by the husband. The only thing stated against the wife is that she was suffering from epilepsy. It may be so. Ex. RA shows that between May and August, 1981 she was taken to the hospital for treatment but the final diagnosis is not known. According to the husband the wife had not gone for EEG as was suggested by the medical attendant. Be that as it may it is not disputed before me that the wife is working in a Government department for the last about two years. This fact itself shows that there is nothing seriously wrong with the wife. Had she been medically unfit, she could not have been working in a department of the Government. Another fact which may, be noticed at this stage is that the husband is also working at Simla. While the husband is living at some place at Lakkar Bazar, the wife is living in a house at Jakhu Hill. The Houses are not very far from each other.
11. Keeping in view the fact that the child is equally attached to both the father and the mother, as well as his tender age, I am of the opinion that both the spouses should have adequate opportunity to be with the child. In the facts and circumstances of this case, I will allow the child to remain in the Custody of the wife. However, on each Saturday at 4 P.M. the husband or his mother would be entitled to take the child from the house of the wife and return the child to the wife on the following day by 5 P. M. It would thus enable the husband to be with his son during a period when he is free from office and could devote some time to the child. My anxiety is to ensure that the child does not become delinqent andgets equal love and affection from his parents, I may record that when the child was produced before me on 7-7-1983. I had directed the custody of the child to the mother. I had also directed that the child would remain with the father on the following Sunday. This order was duly complied with and I found that it worked-satisfactorily. The appeal is, therefore, disposed of in the above terms.