ORDER N.K. Jain, J. 1. This Revision Petition is directed against the order dated 1.2.96 of the Distt. Judge, Ujjain passed in Execution Case Mo. 12A/91 whereby the respondent decree-holder has been allowed to meet his minor son on 15th day of every month from 12.00 a.m. to 4.00 p.m. 2. The execution proceedings in which the aforesaid order has been passed have arisen from a decree for restitution of conjugal rights in favour of respondent - husband against the petitioner wife. The only grievance of the petitioner - wife is that in execution of the decree for restitution of conjugal rights, no order for custody of their minor son could have been legally passed. It is contended that the executing court in passing the order has gone behind the decree. 3. I have heard learned counsel for the petitioner and the respondent in person who himself argued his case. 4. It is well settled that the executing court cannot go behind the decree. In the instant case, the decree under execution is a one for the restitution of conjugal rights only. It could not he and has not been shown that in the proceedings for restitution of conjugal rights any matter relating to the custody of the child was also an issue between the parties or any direction in that behalf was made by the Court white passing the decree. On the other hand, it is clear that the decree passed by the Court is only for restitution of conjugal rights and which can be enforced in accordance with the provisions of Or. 21 R. 32 of the Code of Civil Procedure. 5. The respondent decree holder has, however, contended that the executing court has power u/s. 26 of the Hindu Marriage Act. 1955 to make order as to the custody of the child. In this regard he has referred to the order dated 20.10.95 of this Court passed in C. R. No. 1062/95 between the parties (Smt. Anita Vs. Rajendra Kumar). In para 5 of this order it is observed (By Hon. Chitre, J): In view of provision of 8.26 of Hindu Marriage Act, 1955 the Court of District Judge. Ujjain had jurisdiction to pass such an order keeping in view the welfare of the said minor child Navin @ Sonu and keeping in view the claim made by both Anita and Rajendra as his mother and father.
Ujjain had jurisdiction to pass such an order keeping in view the welfare of the said minor child Navin @ Sonu and keeping in view the claim made by both Anita and Rajendra as his mother and father. 6. It will be appropriate here to refere S.26 of the Hindu Marriage Act, which thus reads: 26. Custody of children. - In any proceeding under this Act, the court may from time to time, pass such interim orders and make such provisions in the decree as it may deem just and proper with respect to the custody, maintenance and education of minor children consistently with their wishes, wherever possible, and may, after the decree, upon application by petition for the purpose, make from time to time, all such orders and provisions with respect to the custody, maintenance and education of such children as might have been made such decree or interim orders in case the proceeding for obtaining such decree were still pending, and the Court may also from time to time revoke, suspend or vary any such orders and provisions previously made. 7. It is true that the Court has very wide powers u/s. 26 as regards to custody of children. Nevertheless, the court's jurisdiction to make provision for custody, maintenance and education of minor children under this Act depends on the following requisites being fulfilled : (i) The application must be made in any proceedings under the Act; and (ii) It must relate to 'Minor Children; 8. The proceedings before the Court below in which the impugned order is made did not relate to the custody of the child, but to the petitioner wife requiring her to conjugate with the respondent husband. As already pointed out, the Court while granting the decree was not required to consider any question as to the custody of the child nor did he made any order in that behalf. That being so, the matter relating to the custody of child could not be agitated or considered in execution of that decree for restitution of conjugal rights and the remedy lay in instituting separate appropriate proceedings for that purpose. 9. It is relevant here to note that Division Bench of this Court in another matter between the parties MCC No. 134/94 - Rajendra Kumar Vs.
9. It is relevant here to note that Division Bench of this Court in another matter between the parties MCC No. 134/94 - Rajendra Kumar Vs. Smt. Anita by its order dated 10.7.95 has clearly observed : The petitioner shall have freedom to file appropriate application before the trial Court for meeting the minor child and if such an application is filed, the respondent shall be at liberty to contest the same. The trial court shall consider and decide such application in conformity with law without in any way feeling tied down by the order dated 8.11.93. 10. During arguments it was stated that the respondent husband has initiated proceedings under the Guardians and Wards Act. 1890. This court while disposing of several writ petitions filed by the respondents against the petitioner, by its order dated 21.3.94 passed in M.P. No. 495/94 has made following directions: 11. It will be thus seen that there are clear directions of this Court that the two matters i.e., one relating to the execution of decree of conjugal rights and second about the custody of the child are to be dealt with separately but by one Court i.e. the District Judge. Ujjain. The learned District Judge in mixing the two matters and dealing with the question of custody of child in the execution proceeding itself clearly acted with material irregularity. In any case it was not appropriate to do so when separate proceedings under the Guardians and Wards Act, have already been instituted by the respondent-husband. I presume that the learned District Judge in compliance with the direction of this Court made in M.P. No. 495/94 (supra), has transferred those proceedings to his own court. If that is not done it be done now and the application for custody of child should be dealt with in those proceedings in accordance with law. 12. The revision thus succeeds and the impugned order in so far as it relates to the custody or of meeting with the child, is set aside. The District Judge is directed to decide the application afresh in accordance with law and keeping in view the observations made above. There shall be, however, no order as to costs.