ORDER S.C. Pandey, J. 1. This revision petition is directed against the orders, dated 7-7-1995 and 18-7-1995, passed by the IIIrd Additional Judge to the Court of the District Judge, Bhopal in M.J.C. No. 47/1995. The Court below has held that Yamini Verma is a necessary party in the aforesaid case. 2. The relevant facts, that give rise to this petition, are hereinafter stated in short. The petitioner filed a petition for the custody of the female child named as Priyanka P. Verma, renamed as Mallika Verma, against the respondents. This petition was filed in the Court below, under section 25 of the Indian Guardian and Wards Act, 1890 (hereinafter 'the Act'). In this petition, it was alleged that the petitioner got married with Yamini Verma at New Delhi on 27th June 1990 in accordance with Hindu rites and customs. As a consequence of that marriage, the child, named above, was born on 23 July, 1993. The petitioner claimed to be the father of the female child. Yamini Verma was admitted to be her mother. 3. It was alleged that the couple moved to U.S.A. after marriage. However, the petitioner was compelled to file a petition for divorce in Circuit Court for the Country of Oakland, State of Michigan, U.S.A. The Court granted divorce by consent on 3 January, 1994. It was further alleged that the aforesaid judgment by consent ordered that the legal and physical custody of Priyanka Verma born, 23 July, 1993 until the child attained the age of 18 years, or until further orders, shall remain with the petitioner. 4. It is not clear from the allegations why Yamini Verma was allowed to retain the custody of the child by the husband after the aforesaid order was passed. It is not unlikely that looking to the age of child, the husband allowed her to remain with the mother till he could make proper arrangement. However, it was stated by the petitioner, that child was brought into this country with the consent of the petitioner. She remained in India from 30 June, 1994 till 28 June, 1995, i.e., for almost one year. Thereafter she left the child with her parents at Bhopal and proceeded to U.S.A. They are the respondents in this revision. However, it was stated by the petitioner, that child was brought into this country with the consent of the petitioner. She remained in India from 30 June, 1994 till 28 June, 1995, i.e., for almost one year. Thereafter she left the child with her parents at Bhopal and proceeded to U.S.A. They are the respondents in this revision. It is alleged that there was some understanding between the two divorcees that child would be taken back but Yamini Verma backed out and went alone to U.S.A. Under these circumstances, the petitioner moved the Court below as the cause of action arose at Bhopal. 5. The petition, filed in the Court below, was resisted by the respondents. They claimed, inter alia, that the consent judgment was obtained by fraud. It was also claimed that there was modification in the initial order regarding the custody of the child by the Court at U.S.A. and the child's custody was awarded to Yamini Verma. It appears that on 7 July, 1995, the trial Court was told by respondents about the aforesaid order, as per letter of Mr. Edward M. Shaw, counsel for Yamini Verma. The respondents claimed that as per modified order, their daughter Yamini Verma was entitled to the custody of the child. It appears a letter of the aforesaid Advocate in U.S.A. was produced before the trial Judge because she has referred to the claim of the respondents in her Order dated 7-7-1995. This Court is constrained to observe that on 7 July, 1995, there was no modification. However on 12 July, 1995 there was modification of the order at the instance of Yamini Verma and the custody of child was given to her. The petitioner filed an affidavit of Mr. M. C. Brown, attorney at law, that no such order was passed. This affidavit is dated 12 July, 1995. However, on the same day an order was passed in favour of Yamini Verma. Subsequently the order dated 12 July, 1995 has also been modified on 9 August, 1995 and the parties have been relegated to the original position. The documents on record show that the latest order by the competent Court in Oakland Country, Michigan State, U.S.A. has directed that the child shall remain in the custody of the petitioner, Pawan Verma. This position is not disputed by the counsel for the respondents before me. 6. The documents on record show that the latest order by the competent Court in Oakland Country, Michigan State, U.S.A. has directed that the child shall remain in the custody of the petitioner, Pawan Verma. This position is not disputed by the counsel for the respondents before me. 6. The learned counsel for the petitioner has assailed the order of the trial Court on the ground that the Court below has refused to exercise jurisdiction vested in it on wrong legal premises. He urged that Court below should have decided the question of interim custody under section 25(2) of 'the Act', without passing the order as it did, by giving directions to the petitioner to implead Yamini Verma. The learned counsel for the petitioner referred to section 41 of the Indian Evidence Act and urged that a final judgment, order or decree passed by a competent court of jurisdiction in the matrimonial matters is relevant and is also conclusive proof of the legal character of a person as declared by that judgment or any legal character taken away by the judgment, as the case may be. Founding his case on the foundation-stone of this section, the learned counsel attacked the view of the trial Court. The learned counsel for the petitioner relied upon a number of decisions. The learned counsel for the petitioner further urged that in view of section 13 of the Code of Civil Procedure, foreign judgment is binding on the parties. The counsel for the petitioner strongly relied on R. Viswanathan and Ors. v. Abdul Wajid and Ors., AIR 1963 SC 1 , Mrs. Kuldeep Sidhu v. Chanan Singh and Ors., AIR 1989 P&H 103 , Dr. Padmini Mishra v. Dr. Ramesh Chandra Mishra, AIR 1991 Orissa 263, Mrs. Elizabeth Dinshaw v. Arvand M. Dinshaw and Anr., AIR 1987 SC 3 , Sankaran Govindan v. Lakshmi Bharathi and Ors., AIR 1974 SC 1764 , Marggarate Maria Pulparampil Nee Feldman v. Dr. Chako Pulparampil and Ors., AIR 1970 Kerala 1, and Mrs. Jacqueline Kapoor v. Surinder Pal Kapoor, AIR 1994 P&H 309 . 7. The learned counsel for respondents asserted that section 41 of the Evidence Act was not applicable to the facts of the case as dispute is not regarding any matrimonial matter, but the dispute is regarding the custody of the child. Jacqueline Kapoor v. Surinder Pal Kapoor, AIR 1994 P&H 309 . 7. The learned counsel for respondents asserted that section 41 of the Evidence Act was not applicable to the facts of the case as dispute is not regarding any matrimonial matter, but the dispute is regarding the custody of the child. She further asserted that section 13 of the Code of Civil Procedure would not apply to the facts of the case. The argument of learned counsel for the respondents was that there was no error of jurisdiction and this Court should not interfere with the discretion exercised by the trial Court in its order that Yamini Verma was a necessary party. 8. Having heard the counsel for the parties and considering the matter in its proper perspective, this Court concludes that the order passed by the Court below is just and proper. The Court below cannot pass any order without hearing the real person who would be aggrieved by the order passed in favour of the petitioner. The tests that have been laid down for determining a necessary party to a suit under Order 1, Rule 10 of Civil Procedure Code would be equally applicable to application under section 25 of 'the Act'. A Full Bench of this Court in Panne Khushali and Anr. v. Jeewanlal Mathoo Khatik and Anr., 1976 MPLJ 170 , has culled out the necessary tests for determining a necessary party as follows at page 172 (para 8) : "The Allahabad High Court in a Full Bench decision in the Banares Bank v. Bhagwandas had laid down the test for determining the question as to who is a necessary party to a proceeding which were approved by their Lordships of the Supreme Court in Deputy Commissioner v. Rama Krishna ( AIR 1953 SC 521 ) and these tests are as under :- (i) There must be a right to some relief against such party in respect of the matter involved in the proceedings in question, (ii) It should not be possible to pass an effective decree in the absence of such a party." It is thus clear that a person 'who ought to have been joined' within the meaning of Order 1, Rule 10 of the Code of Civil Procedure would be a person who must be directly and legally interested in the result of the litigation. Who would be such a person? Who would be such a person? We must, therefore, look to the object of the suit rather than subject matter of suit in order to find out such a person. Ordinarily, if we look to the relief clause, we may find out who would be directly affected by the result of the suit. In order to do so more thoroughly, we may go a step further and imagine that all reliefs are granted to the petitioner plaintiff. We may then get a clear picture of persons affected. Then if we find that all the persons affected by the decree or order have been joined, there is no need to proceed further. However, in case somebody whose presence is necessary in relation to the relief granted, then he is the person who is left out. The Court may direct him to be joined as a necessary party because it feels that if that course is not followed, then the person left out would be affected legally or his legal rights would be in jeopardy. Indeed the matter was examined from point of view of a necessary party in Dollfus Mieg et Compagnie S.A. v. Bank of England, (1950) 1950-2 All ER 605 at page 611 as follows : "the true test lies not so much in an analysis of what are the constituents of the applicant's rights, but rather in what would be the result on the subject-matter of the action if those rights could be established." In Amon v. Raphael Tuck and Sons Ltd., (1956) 1956-1 All ER 273 at page 291 Lord Devlin took the matter further from same point of view and laid down test as follows : "It is not enough that the intervener should be commercially or indirectly interested in the answer to the question; he must be directly or legally interested in the answer. A person is legally interested in the answer only if he can say that it may lead to a result that will affect him legally that is by curtailing his legal rights. A person is legally interested in the answer only if he can say that it may lead to a result that will affect him legally that is by curtailing his legal rights. That will not be the case unless an order may be made in the action which will operate on something in which he is legally interested." The Supreme Court in Razia Begum v. Sahebzadi Anwar Begum and others, AIR 1958 SC 886 at page 895 summarised its conclusions as follows : "(1) That the question of addition of parties under Rule. 10 of Order. 1 of the Code of Civil Procedure, is generally not one of initial jurisdiction of the Court, but of a judicial discretion which has to be exercised in view of all the facts and circumstances of a particular case; but in some cases, it may raise controversies as to the power of the Court, in contradistinction to its inherent jurisdiction, or, in other words, of jurisdiction in the limited sense in which it is used in section 115 of the Code; (2) That in a suit relating to property, in order that a person may be added as a party, he should have a direct interest as distinguished from a commercial interest, in the subject-matter of the litigation; (3) Where the subject-matter of a litigation is a declaration as regards status or a legal character, the rule of present or direct interest may be relaxed in a suitable case where the Court is of the opinion that by adding that party, it would be in a better position effectually and completely to adjudicate upon the controversy; (4) The cases contemplated in the last proposition, have to be determined in accordance with the statutory provisions of sections 42 and 43 of the Specific Relief Act." 9. It is significant that Supreme Court relaxed the rule of direct or legal interest in cases where the reliefs involved a legal character or status. 10. However, we must first examine the legal position from the point of view of the petitioner, against whom he is complaining? He is in reality complaining against his divorced wife Yamini Verma, who had whisked away the child from his legal custody and brought her to India. Can we not say that he has a right of relief against her? However, we must first examine the legal position from the point of view of the petitioner, against whom he is complaining? He is in reality complaining against his divorced wife Yamini Verma, who had whisked away the child from his legal custody and brought her to India. Can we not say that he has a right of relief against her? The respondents by themselves have no legal right to the child better than either father or mother. The respondents do not claim an independent right to the custody of the child. They are holding the child for and on behalf of Yamini Verma. Their responsibility is towards Yamini Verma because it was she who left the child with them. Thus so far as the respondents are concerned, they may believe, and they have a right to believe, that the child was in legal and valid custody of their daughter, when she handed her over to them. Thus though they are in physical possession of the body of the child but from the point of view of respondents, the legal custody of the child would be that of Yamini Verma and she was entitled to claim reversion to her legal status by demanding the custody of the child. On the other hand, the respondents are not legally responsible to the petitioner in the sense they are not bound to recognize the rights of the petitioner without the presence of their daughter in the litigation. They can say loudly to the petitioner to seek legal custody of the child from Yamini Verma. Thus the petitioner cannot fight a proxy battle with the parents of Yamini Verma. He must come out in the open and fight his battle with her. Thus the petitioner has a right of relief against her only. 11. If we examine the proposition conversely from the point of view of Yamini Verma, we shall find that she is the person who is directly and legally interested in the result of litigation. As the lis is still pending and we have no means of knowing what really happened in U.S.A. We shall have to give equal marks to both the petitioner and Yamini Verma. That is to say, their conduct vis-a-vis the female child Priyanka alias Mallika Verma is equally good or equally bad - the way you look at it. As the lis is still pending and we have no means of knowing what really happened in U.S.A. We shall have to give equal marks to both the petitioner and Yamini Verma. That is to say, their conduct vis-a-vis the female child Priyanka alias Mallika Verma is equally good or equally bad - the way you look at it. Examining the case impartially, there can be no escape from the conclusion that the legal rights of Yamini Verma are likely to be curtailed because she is directly and legally interested in the probable result of litigation. Her legal rights of custody of her minor child are being curtailed, if custody of child is given to Pawan Verma, the petitioner. Thus looking from both the angles, this Court comes to conclusion that Yamini Verma ought to be joined as a party to the application. 12. It is also true that since the respondents are only holding the child merely as caretakers, then orders passed against them would not bind Yamini Verma. She cannot be made a party by proxy. She must be given an opportunity to be a real contestant. This can be done only by making her a party to the application under section 25 of 'the Act'. 13. It appears that the petitioner was conscious of this flaw and, therefore, an argument was built up on the basis of section 41 of the Evidence Act, 1872 as well as section 13 of Code of Civil Procedure, 1908. So far as section 41 of Evidence Act is concerned, it is for the trial Court to pass an appropriate order after weighing the rival contentions as to applicability of that section. The Court, is bound to examine whether the order regarding custody of a child in a matrimonial proceeding would be covered by section 41 of the Evidence Act, 1872. Is there any conferral of character? Or conversely taking away of any character? Whether the question of custody of the child is an integral part of divorce proceedings? All these questions and much more has to be answered, but this has to be done by the trial Court. Yamini Verma is entitled to impugn every point raised by the petitioner in order to vindicate her right. No decision can be given without affording her an opportunity of hearing. 14. All these questions and much more has to be answered, but this has to be done by the trial Court. Yamini Verma is entitled to impugn every point raised by the petitioner in order to vindicate her right. No decision can be given without affording her an opportunity of hearing. 14. A further question was raised and argued with his usual vehemence by the learned counsel for the petitioner that in view of section 13 of Code of Civil Procedure, the judgment of foreign Court would be binding upon the respondents. If that were so, this argument would be complete answer to the question of the necessary party. The learned counsel for the petitioner pressed into service the well known case reported in R. Viswanathan and Ors. v. Abdul Wajid and Ors. (supra). He also brought to the notice of the Court Marggarate Maria Pulparampli Nee Feldman v. Dr. Chacko Pulparampil and Ors., Mrs. Kuldeep Sidhu v. Chanan Singh and Ors., Mrs. Jacqueline Kapoor v. Surinder Pal Kapoor, Mrs. Elizabeth Dinshaw v. Arvand M. Dinshaw and Anr., Sankaran Govindan v. Lakshmi Bharathi and Ors. (supra). The learned counsel for the respondents drew the attention of this Court to Maganbhai Chhotubhai Patel v. Maniben, AIR 1985 Guj. 187 . 15. Having gone through these authorities and much more, this Court is of the opinion that it would be unnecessary to deal with various shades of section 41 of Evidence Act and section 13 of Code of Civil Procedure and the effect of a foreign judgment on the parties. Instructive as these authorities are any comment on them may amount to prejudging the issues to be decided by the trial Court. This Court must scrupulously avoid entering into that territory which would be the domain of the trial Court. 16. However, it is still necessary to meet the point raised by the learned counsel for the parties. It could be met by saying that as per very terms of section 13 of Code of Civil Procedure, a foreign judgment is conclusive and binding upon the Courts provided : (i) It is between the same parties or between the parties under whom they or any of them claim litigating under the same title. That is to say, if the first condition is not fulfilled then second condition must be fulfilled and further. That is to say, if the first condition is not fulfilled then second condition must be fulfilled and further. (ii) It must be pronounced by a Court of competent jurisdiction in the foreign country. (iii) It must be given on merits of a case. One must, therefore, find out why this clause (b) of section 13 was inserted and what is the scope of words merits therein. Whether a compromise or consent decree would be binding as held in AIR 1970 Ker 1 or it would not be binding as held in AIR 1946 Mad 296 ? (iv) A judgment contrary to established view of international law or refusal to recognize the law of India in cases in which the law applicable would not be binding. That is to say, the Court must find out in divorce proceedings whether the local law should have been applied or at least recognized as the parties were married in India. Or whether the domicile and submission to jurisdiction of foreign Court would be sufficient answer in such matter. (v) The judgment must not be such that could be attacked on the ground of violation of principles of natural justice. (vi) The judgment must not have been obtained by fraud practised on the Court. (vi) The judgment of the foreign court is not violative of any law in India. 17. The aforesaid grounds (ii) to (vii) are exceptions to the main section 13 of Code of Civil Procedure. Nevertheless, these exceptions must have been enacted to safeguard the interest of a person against whom a foreign judgment is claimed as res judicata. The burden of proof to prove, that on account of these exceptions the foreign judgment is not binding upon him, would on the person who takes up this defence. The exceptions have been dealt with some what elaborately to show the nature of defence. It is but natural that the defence of these exceptions would be taken up better by the party who fought the litigation in the foreign country. So long as she is in a position to defend herself, it would be in the interest of justice that she should be given an opportunity to prove that she is not bound by a foreign judgment under section 13 of the Code of Civil Procedure. The respondents themselves cannot take an effective plea. Thus respondents are mere caretakers. 18. So long as she is in a position to defend herself, it would be in the interest of justice that she should be given an opportunity to prove that she is not bound by a foreign judgment under section 13 of the Code of Civil Procedure. The respondents themselves cannot take an effective plea. Thus respondents are mere caretakers. 18. If we examine this case from the point of view of the effective order of the Court, the respondents can always avoid an order against them by delivering the custody of the child to Yamini Verma. Yamini Verma would not be bound by any order passed against her parents because she was not party to the decision of the Court here. Thus the second test that the Court would be able to pass an effective order in absence of Yamini Verma is not satisfied. For this reason also it held that Yamini Verma is a necessary party. 19. Thus having examined the point whether Yamini Verma would be necessary party or not from various angles, it is held that she is a necessary party. It is also to be noticed that in Razia Begum v. Sahebzadi Anwar Begum and Ors. (supra) the Supreme Court had relaxed the test of direct interest in cases where the question of legal character or status was involved in a suit or other proceeding. 20. The learned counsel for the petitioner reminded this Court that hyper technicalities should not rule the heart of men whose duty it is to exercise the powers under section 25 of 'the Act'. The counsel assailed the conduct of Yamini Verma because she left India leaving child with her parents. It was his contention that the lady did not care for the child. However, there is other side of the coin. Why did the petitioner not take the custody of the child immediately after the order was passed by the Court in U.S.A.? If he was deceived by his ex wife Yamini Verma, then he could have immediately taken steps to get her custody. He waited for almost a year. Only when Yamini Verma departed to U.S.A., he initially got application filed under section 25 of 'the Act' through his parents and subsequently joined as a party. If he was deceived by his ex wife Yamini Verma, then he could have immediately taken steps to get her custody. He waited for almost a year. Only when Yamini Verma departed to U.S.A., he initially got application filed under section 25 of 'the Act' through his parents and subsequently joined as a party. Thus it appears the petitioner himself is not free from blame regarding the welfare of child as he has taken one year's time for waking from his slumber. This Court is not passing any judgment on the conduct of either side, but only making it clear that none of the parties seems to have taken any special care for the welfare of the child, prima facie. No final judgment can be passed at the moment due to paucity of material. 21. This Court, now, turns to the welfare of the child and feels that child would not be deprived of care and affection in custody of her maternal grand parents until this dispute is finally settled. The grand parents in India treat their grand children with affection and love bordering on over indulgence. However, the child shall not be spoiled during the interim custody till the case of petitioner is finally decided. It is, therefore, ordered that respondents shall retain the custody of the child till the trial Court decides the case on merits. 22. The upshot of the aforesaid discussion is that this Court upholds the orders of the Court below to the effect that Yamini Verma is a necessary party. It is, therefore, directed that the applicant shall take steps to implead her as a party to the application. The counsel for the respondents had stated during the arguments that respondents shall give the petitioner correct address of Yamini Verma. The Court below should help the petitioner in getting Yamini Verma served. It is the duty of the Court below to see that respondents assist the Court in getting Yamini Verma served. After service of summons to Yamini Verma, the case will proceed further. No order need be passed regarding interim custody of the child. The trial Court shall finally dispose of this case within two months of service on Yamini Verma. 23. This revision fails and is dismissed subject to observations made above. There shall be no order as to costs.