Gokal Chand Mital, J. - (1.) Ravinder Kaur is alleged to have come to India for the purpose of marriage. She was married with Malkiat Singh in India on 6-7-1980. Sometime after the marriage while she was pregnant, she went back to England where Sarvjit Singh was born to her on 7-10-1981. The husband continued to remain in India. On 1-5-1982, she came back along with the child and on 11-7-1982 went back alone. On 7-3-1983 Malkiat Singh filed a petition under Sec. 25 of the Guardians and Wards Act, 1890 (for short the Act') primarily against Smt. Mohinder Kaur, mother of Ravinder Kaur, for custody of child. According to his plea, the child had been left with him when his wife went to England and her mother took away the child on the Rakhri festival and in spite of his request did not return to him. The stand of Mohinder Kaur was that the child had been left with her when her daughter went back to England. The record of the case shows that no issues were framed, no opportunity was given to the parties to lead evidence. Malkiat Singh had filed an application under Sec. 100 of the Code Criminal Procedure (hereinafter called the Code'), during the pendency of the proceedings for issuance of warrants for the production of the minor child in Court. Order dated 3-6-1983 shows that the power of attorney was filed on behalf of Mohinder Kaur and reply to the application was also filed on that date. This was followed by order to the following effect:- "To come up on 6-6-1983." The order of 6-6-1983 is as follows:- "Arguments heard. For orders to come up on 10-6-1983." On 10-6-1983, the Court below decided the main petition under Sec. 25 of the Act in the absence of issues and evidence and ordered that the custody of the minor be given to Malkiat Singh. In this order, there is no discussion about the application filed under Sec. 100 of the Code nor whether it is allowed or rejected or that it has become infructuous. This is appeal by Smt. Mohinder Kaur.
(2.) In view of the fact that on the main petition for custody of the child, the issues were not framed and evidence was not allowed to be led, the order dated 10-6-1983 cannot be allowed to stay. An unusual procedure has been followed. The case was adjourned on 3rd June, 1983 to 6-6-1983 for arguments on the application filed under Sec. 100 of the Code, because that matter could be disposed of without framing the issue and evidence. But the main petition could not be decided.
(3.) For the reasons recorded above, this appeal is allowed, the order of Court below dated 10-6-1983 is hereby set aside and the matter is remmitted to that Court for framing issues and then to give opportunity to the parties to lead evidence and then to decide the case on the basis of evidence in accordance with law. The parties through their counsel are directed to appear before the trial Court on 25-2-1985. Appeal allowed.;