- (1.) B. K. Rathi, J. The applicants moved an application for appointment of guardian of the two twin minors Km. Rinky and Ashu under Section 29 of the Guardians and Wards Act, 1890 (hereinafter referred to as the Act ). The opposite party opposed the application claiming that he being father of minors is natural guardian and as such is entitled to their custody. The trial Court (District Judge, Fatehpur) recorded the evidence and considered the question of the welfare of the children in detail and rejected the application of the applicants on 2-8-1999. This order has not been challenged during arguments before me.
(2.) ON that very day the District Judge, Fatehpur has passed another order on application 26-C of the opposite party. This order was passed in the absence of the applicants and it was mentioned in the order that this order be served on applicants through special commissioner. By this order the applicants were directed to hand over the custody of the two minors to the opposite party on 7-8-1999 at 11 a. m. The applicants are aggrieved by this order and have challenged the same in this appeal. I have heard Sri W. H. Khan, learned Counsel for the applicants and Shri Atul Srivastava for opposite party. It has been argued that the opposite party contested the application of the applicants, which was moved by them under Section 29 of Guardians and Wards Act and it was rejected. That the opposite party did not moved any application under Sections 9 and 15 for appointment of guardian nor he was appointed guardian by the earlier order dated 2- 8-1999. That no applicants was moved by the opposite party under Section 25 of the Act for the custody of the minors. That on simple application the learned District Judge has ordered for delivery of the custody of the minors to the opposite party without opportunity of hearing to the applicants. It has been argued that the order is without jurisdiction. In my opinion the arguments of the learned Counsel for the applicant is correct. No doubt, the opposite party is the natural guardian of the minors being their father but even then, he should have claimed custody of the minors by moving an application under Section 25 of the Act which could have been disposed of after hearing the parties. No such application was moved.
(3.) APART from this, the matter was finally decided on 2-8-1999. The learned District Judge on that date afterwards passed different order behind the back of the applicants. The said order therefore, cannot be retained. Accordingly, the First Appeal From Order is allowed. The subsequent order of 2-8-1999 on application 26-C is quashed. However, notwithstanding any observation made above the opposite party may file application for appointment of guardian and/or for custody of the minors under Section 25 of the Act. If such an application is moved it shall be disposed of the accordance with law expeditiously notwithstanding any observation made in the body of this judgment. The party shall bear their own costs. Appeal allowed. .;