ORDER
Mishra, J.
1. Respondent Konel Parekh and the appellant Radhika were married in accordance with Hindu rites on 1st of April, 1990 and a male child was born to them on 30th March, 1991, On 16-12-1991, however, Konel filed O.P. No. 694 of 1991 in this court seeking his appointment as the guardian of the son born on 30th March, 1991, named parthiv and also for other reliefs. He applied for a direction that he be given interim custody of Parthiv in Application No. 6404 of 1991 in the said petition, O.P. No.694 of 1991. Radhika, the appellant, responded to the notice stating inter alia that she had moved the family Court at Bombay seeking reliefs inter alia of divorce and for the interim custody of the minor child Parthiv, maintenance and restraint orders on 6-12-1991. The Family Court at Bombay on 11 -12-1991 by an order, restrained Konel from forcingly removing the child from her custody. She stated in her return that the order of restraint became necessary in view of the fact that the respondent had physically deprived her of the company of her then seven month old minor child between the period 10-11-1991 and 2-12-1991 and had in fact sought to leave the country with the minor child on the night of 8-12-1991 which the appellant with the intervention of the police and pursuant to a complaint to the police was able to stop at a last minute. She said in her return as follows :
'.....In fact, the respondent with the minorchild had gone to the airport to leave the country and was stopped by the airport staff from checking in for the flight on account of the police complaint and it was only pursuant thereto that the applicant was able to recover the custody of the minor child.'
2. In his reply to the return of Radhika, Konel, however, said,
'I submit that during the period November 10, 1991 to December 2, 1991 the minor child was under the custody of the respondent herein. The events that had happened during this period have been stated by me in my statement made to the police as reply to the FIR filed by the applicant.
I wish to state that on 7-11-1991 I, by chance ascertained that my wife was expecting a child. This was the second child. On Friday the 8th November 1991 the pregnancy was confirmed and the doctor declared that the applicant was seven weeks pregnant. My wife insisted that she wanted to have an abortion as she did not want this child. I pleaded before her of the religious intention among jains against adopting abortion. I made my earnest request before her not to kill the child in the womb. When she knew that I was against her wish, she wanted to leave for her parents' place in Bombay. Thereupon on Sunday the 10th November 1991 I escorted her to the airport and purchased for her a round trip air ticket to Bombay and she left the child with me. I requested her to rethink her decision and stay at Madras at least for one more day on 11th November, 1991 being my birth-day. All my requests had no effect on her. As expected I was informed by my father-in-law on 16th November, 1991 that my wife had an abortion at Bombay. This act of my wife totally shattered me and I flew to Bombay on 17th November 1991 and reached their home around 9 a.m. I was denied an audience with my wife by her parents and they told me that she is taking rest under Doctor's instructions. I did not therefore meet my wife and came back to Madras. I came to know thereafter that on 19th November 1991 she had visited Madras and she had no decency or courtesy to inform me about her stay in Madras. Thereafter she had proceeded to Central Bank of India, Haddows Road Branch, Madras which is hardly a furlong from our house and she had operated the joint safe deposit locker and emptied the contents therein. I came to know of the incident on the afternoon of 2nd December 1991 in front of our house and I enquired about that. On 30th November 1991 she called me over phone and at that time I informed her that I was going to Singapore for three days work. I asked her to return to Madras so that I could travel to Singapore leaving the child to her custody and care. She refused to return to Madras saying that she has not fully recovered from her illness. Even during her stay at Madras with me, child was looked after by thegoverness since she had refused to come down to Madras to take care of the child. Thereafter I informed her that I will take the child with me to Singapore for three days along with my mother and will be back on 6th December 1991 by the same airline. In fact I had purchased a return ticket for all of us and the return journey was also confirmed for Friday the 6th December 1991. While so, taking advantage of the fact that I was taking the child to Singapore she made a false complaint to the police as if I am taking the child out of India for ever and she made a false complaint to the police on 2nd December 1991 presumably under the Dowry Prohibition Act so that the police will take immediate action. The FIR filed with the police is full of false statements and for the first time the case of illtreatment by my parents and demand for jewellery and cash had been stated.'
3. It has, however, transpired that Konel, who is an Indian born has, however, become a citizen of the United States of America. He intended to visit Singapore with the child and that a Police complaint was filed which stopped him from taking away the child to Singapore, according to him for a temporary period; according to Radhika with a view to taking away the child from her permanently. The filing of the case for divorce in the family Court at Bombay on 6-12-1991 and the order dated 11-12-1991 are such facts that are not in doubt, according to Konel, however, he did not know about the filing of the case in the Family Court at Bombay or any order passed in any petition that Radhika had filed in the family Court when he moved in O.P. No. 694 of 1991 or the application in Appn. No. 6404 of 1991. Radhika moved in Application No. 60 of 1992 for stay of the proceedings in this Court and both the applications; viz., Application No. 6404 of 1991 filed by Konel for interim custody of the child and Application No. 69 of 1992 filed by Radhika for stay of the proceedings were taken, together. The learned Judge, who heard the parties, however, has ordered as follows :
'One thing not in dispute between the parties is that their child is an infant just one year old. It is really unfortunate thatestrangement between spouces should have arisen within a year of birth of a child when normally they should have been happy with the child born to them to live in amity for a long and happy life. Any way the wife has filed an application in the family Court.'
'at Bombay for the following relief :
The petitioner therefore prays :
(a) that the said marriage between the petitioner and the respondent solemnised on 1-4-1990 be dissolved by a decree of divorce;
(b) that this Hon'ble Court be pleased to declare that the petitioner is entitled to the custody of her minor child, the said parthiv ;
(c) that the respondent be ordered and decreed to pay to the petitioner the maintenance at the rate of Rs. 1,00,000/- per month for herself and her minor child the said Parthiv ;
(d) that it may be declared that the petitioner is entitled to the article of Jewellery, gold and silverware ornaments and silverware;
(e) that the respondent be ordered and directed to pay the petitioner a sum of Rs.50,000/- as and by way of costs of prosecuting this petition;
(f) that the respondent be restrained by this Hon'ble Court from travelling abroad or leaving India without the permission of this Hon'ble court till the hearing and final disposal of the petitioner;
(g) that the respondent be ordered and/or directed by this Hon'ble Court to furnish adequate security to the satisfaction of this Hon'ble Court and sufficient to meet the petitioner's claim for alimony/pendente lite, costs that are likely to be awarded to the petitioner to meet the costs of the prosecuting of the petitioner and for her appearance in Court;
(h) that the respondent be directed to deposit his passport in Court;
(i) that the respondent be ordered and directed to return all the clothes and personaleffects, ornaments and silverware of the petitioner which are in the matrimonial home; (j) that ad interim and interim reliefs in terms of prayer (c) to (i) hereinabove.
(k) and for such other and further reliefs as this Hon'ble Court may deem fit and proper in the circumstances of the case.'
'It is significant to notice that the main relief is for divorce. Interim custody of the child is only ancillary to the main relief.'
'On the other hand original petition No. 694 of 1991 filed by the husband is for being appointed as the guardian of the minor's person and property. Therefore, it is plain that the questions involved in the Original Petition No. 694 of 1991 of this Court and the proceedings in the Family Court cannot be the same although there may be a little overlapping in the matter of evidence to be adduced in both. Therefore unless the matter in issue in an earlier proceeding is identically in issue in the later proceeding, there cannot be a stay of the later proceeding. That is the principle under S. 10 Civil Procedure Code which whether applicable to the proceedings in question or not has to be appreciated. By application of the said principle even to these proceedings I do not see any basis for stay as prayed for by the wife. Hence Application No. 69 of 1992 is dismissed. No costs.'
'As regards the interim custody prayed for by the father of the child, one insurmountable difficulty which the father has got to confront is that the child is just one year old. In guardianship proceedings it is well settled law that the Court is concerned mostly for the welfare of the child which is paramount. Hence the father cannot have interim custody of the child, at any rate, at this age of the minor child. The child has to be with the mother. I am of this view not on the grounds set forth by the wife in her application for stay but on the only ground that the child being one year old it has to be with the mother.'
'However the father should not be left helpless. He is equally interested in the child and bound to have affection. Therefore, it is not just to deprive him of that affection.'
'Therefore, it is but proper that the father should be permitted to visit the child as frequently as be feels so at Bombay at the residence of his wife and with liberty to take the child for the outings as he desires subject to his leaving the child in the custody of the wife while returning from Bombay. This is the utmost that this Court can grant pending disposal of the main original petition.'
4. Radhika has appealed in O.S.A. No. 93 of 1992 against the order in Application No. 6404 of 1991 and O.S.A. No. 94 of 1992 against the order in Application No. 6404 of 1991 and O.S.A. No. 94 of 1992 against the order in Application No. 69 of 1992.
5. Before we proceeded to hear the appeal, learned counsel for the respondent questioned the maintainability of O.S.A. No. 94 of 1992 arising out of the order in Application No. 69 of 1992 on the ground that an order passed on an application for stay of the proceedings under Section 10, C.P.C. is not a 'judgment' and thus no appeal under Clause 15 of the Letters Patent is maintainable. He relied upon a Full Bench decision of this Court in Central Brokers v. Ramnarayana Poddar & Co., : AIR1954Mad1057 (FB) in which overruling an earlier judgment of this Court in Abdul Nabhi Saheb v. Marti Ramalashmamah : AIR1948Mad371 , the Court expressed that on order made under S. 10, Civil P. C., or any other provision of law for the stay of trial of a suit is not a judgment within the meaning of that term in Cl. 15 of the Letters Patent and would, therefore, be not appealable. The Full Bench of this Court in this behalf mainly relied upon a judgment of the Supreme Court in Asrumati Debi v. Rupendra Deb, : [1953]4SCR1159 in which two tests have been laid down to find out whether an adjudication in a particular proceeding is a judgment or not; if they are so, (1) whether it terminates the suit or proceeding and (2) whether it affects the merits of the controversy between the parties in the suit itself.
6. Learned counsel for the respondent has cited, however, another judgment of this court in Angadu Narasimhalu Chettier v.Selvarajan, (1991) 2 MLJ (NRC) 1 in which an order of transfer of a suit from one Court to another was sought to be challenged and in which case reliance was placed upon the judgment of the Supreme Court in Asrupathi Debi's case, : [1953]4SCR1159 (supra). In that case, the Division Bench observed,
'In yet another decision Govindarajulu v. Devar and Co., : AIR1954Mad248 , Raja-manner, C.J., and Venkatarama Aiyar, J., had to consider the maintainability of an appeal under Cl. 15 of the Letters Patent against an order transferring a suit from one Court to another. While holding that the appeal so preferred was incompetent the Division Bench pointed out that the appeal purporting to be under Cl. 15 of the Letters Patent was directed against an order of the learned Judge transferring a suit and that according to the 'decision of the Supreme Court referred to earlier such an order transferring a suit from one Court to another, is not a judgment within the meaning of Cl. 15 of the Letters Patent. Therefore,
'it is said that the order of the learned Judge neither affects the merits of the controversy between the parties nor does it put an end to or terminate or dispose of the suit on any other ground but merely transfers the suit now pending before one Court to another Court and such an order cannot be any stretch of imagination be said to be a judgment within Cl. 15 of the Letters Patent.'
7. The decision in the case of Govindarajulu v. Davar and Co., : AIR1954Mad248 or in Angadu Narasimhalu Chettier's case, (1991) 2 MLJ (NRC) 1 (supra) in which it has been held that an order transferring a suit from one Court to another is not a judgment within the meaning of Clause 15 of the Letters Patent, stands on a different footing and distinguishable from the Full Bench judgment in the case of Central Brokers, : AIR1954Mad1057 (supra) in which it has been held that an order made under Section 10, Civil P. C. or any other provision of law for the stay of trial of a suit is not a judgment within the meaning of that term in Cl. 15 of the Letters Patent andwould, therefore, be not appealable. Govindarajulu's case, : AIR1954Mad248 and Angadu Narasimhalu Chettiar's case, (1991) 2 MLJ (NRC) 1 (supra) are distinguishable for the reason that there may not be any occasion, in the case of an order to transfer a suit or refuse to transfer a suit from one Court to another, for a judgment at interlocutory stage which will be an order of moment or affecting any party.
8. We are, however, spared of any exercise of distinguishing the Full Bench judgment which, on the face of it, cannot be distinguished from the facts of the instant case or of recording any difference of opinion and a reference thus to a larger bench or request to the Chief Justice for such an order for the reason of a judgment of the Supreme Court in the case of Shah Babulal Whimji v. Jayaben, AIR 1981 SC 1986 in which this aspect of the matter has been fully gone into and it is stated in no uncertain terms that an order staying or refusing to stay a suit under Section 10, C.P.C. is appealable under Cl. 15 of the Letters Patent. There is, however, no reference in this judgment of the Supreme Court to the Full Bench judgment of this Court in the case of Central Brokers', : AIR1954Mad1057 (supra), : [1953]4SCR1159 (supra) which has been relied upon by the Full Bench of this Court as stating the law on the subject, has been referred to, and the Supreme Court has, said as follows (Paras 7, at p. 1789 of AIR) :
'This Court also has incidentally gone into the interpretation of the word 'judgment' and has made certain observations but seems to have decided the cases before it on the peculiar facts of each case without settling the conflict or the controversy resulting from the divergent views of the High Courts. This Court, however, has expressed a solemn desire and a pious wish that the controversy and the conflict between the various decisions of the High Courts has to be settled once for all some time or the other. In this connection, in Asrumati Debi v. Kumar Rupendra Deb Raikot, : [1953]4SCR1159 , this Court observed as follows (at p. 200) :--
'In view of this wide divergence of judicial opinion, it may be necessary for this Court atsome time or other to examine carefully the principles upon which the different view mentioned above purport to be based and attempt to determine with so much definiteness as possible the true meaning and scope of the word 'judgment' as it occurs in Clause 15 of the Letters Patent of the Calcutta High Court and in the corresponding clauses of the Letters Patent of the other High Courts. We are, however, relieved from embarking on such enquiry in the present case as we are satisfied that in none of the views referred to above could an order of the character which we have before us, be regarded as a 'judgment' within the meaning of Clause 15 of the Letters Patent.'
9. After referring however to the various other judgments of the Supreme Court and analysing the entire ambit of the scheme of the Letters Patent and the provisions of the Code of Civil Procedure, both old and new, the Supreme Court in Shah Babulal Khimji's case, AIR 1991 SC 1786 has stated as follows (Para 113, at Pp. 1815 and 1816 of AIR) :
'Thus, under the Code of Civil Procedure, a judgment consists of the reasons and grounds for a decree passed by a Court. As a judgment constitutes the reasons for the decree it follows as a matter of course that the judgment must be a formal adjudication which conclusively determines the rights of the parties with regard to all or any of the matters in controversy. The concept of a judgment as defined by the Code of Civil Procedure seems to be rather narrow and the limitations engrafted by sub-section (2) of Section 2 cannot be physically imported into the definition of the word 'judgment' as used in Cl. 15 of the Letters Patent because the Letters Patent has advisedly not used the term 'order' or 'decree' anywhere. The intention, therefore of the givers of the Letters Patent was that the word 'judgment' should receive a much wider and more liberal interpretation than the word 'judgment' used in the Code of Civil Procedure. At the same time, it cannot be said that any order passed by a trial Judge would amount to a judgment; otherwise there will be no end to the number of orders whichwould be appealable under the Letters Patent. It seems to us that the word 'judgment' has undoubtedly a concept of finality in a broader and not a narrower sense. In other words, a judgment can be of three kinds :--
(1) A final judgment A judgment which decides all the questions or issues in controversy so far as the trial Judge is concerned and leaves, nothing else to be decided. This would mean that by virtue of the judgment, the suit or action brought by the plaintiff is dismissed or decreed in part or in full. Such an order passed by the trial Judge indisputably and unquestionably is a judgment within the meaning of the Letters Patent and even amounts to a decree so that an appeal would lie from such a judgment to a Division Bench.
(2) A preliminary judgment-- This kind of a judgment may take two forms-- (a) where the trial Judge by an order dismisses the suit without going into the merits of the suit but only on a preliminary objection raised by the defendant or the party opposing on the ground that the suit is not maintainable. Here also, as the suit is finally decided one way or the other, the order passed by the trial Judge would be a judgment finally deciding the cause so far as the trial Judge is concerned and, therefore, appealable to the larger Bench, (b) Another shape which a preliminary judgment may take is that where the trial Judge passes an order after hearing the preliminary objections raised by the defendant relating to maintainability of the suit, e.g., bar of jurisdiction, res judicata, a manifest defect in the suit, absence of notice under Section 80 and the like, and these objections arc decided by the trial Judge against the defendant, the suit is not terminated but continues and has to be tried on merits but the order of the trial Judge rejecting the objections doubtless adversely affects a valuable right of the defendant who, if his objections are valid, is entitled to get the suit dismissed on preliminary grounds. Thus, such an order even though it keeps the suit alive, undoubteldy decides an important aspect of the trial which affects a vital right of the defendant and must, therefore, be construed to be a judgment, so as to be appealable to a larger Bench.
(3) Intermediary or interlocutory judgment -- Most of the interlocutory orderswhich contain the quality of finality areclearly specified in clauses (a) to (w) of Order43, Rule I and have already been held by us tobe judgments within the meaning of theLetters Patent and, therefore appealable.There may also be interlocutory orders whichare not covered by Order 43. Rule 1 but whichalso possess the characteristics and trappingsof finality in that, the orders may adverselyaffect a valuable right of the party or decidean important aspect of the trial in an ancillaryproceeding. Before such an order can be ajudgment the adverse effect on the partyconcerned must be direct and immediaterather than indirect or remote. For instance,where the trial Judge in a suit under Order 37of the Code of Civil Procedure refuses thedefendant leave to defend the suit, the orderdirectly affects the defendant because he losesa valuable right to defend the suit and hisremedy is confined only to contest theplaintiff's case on his own evidence without being given a chance to rebut that evidence. As such an order vitally affects a valuable right of the defendant it will undoubtedly betreated as a judgment within the meaning ofthe Letters Patent so as to be appealable to alarger Bench. Take the converse case in asimilar suit where the trial Judge allows thedefendant to defend the suit in which casealthough the plaintiff is adversely affected butthe damage or prejudice caused to him is not direct or immediate but of a minimal nature and rather too remote because the plaintiff still possesses his full right to show that thedefence is false and succeed in the suit. Thus,such an order passed by the trial Judge wouldnot amount to a judgment within the meaning.of clause 15 of the Letters Patent but will bepurely an interlocutory order.
Similarly, suppose the trial Judge passes an order setting aside an ex parte decree against' the defendant, which is not appealable under any of the clauses of O. 43, R. 1 though an order rejecting an application to set aside the decree passed ex parte falls within Order 43, Rule 1, clause (c) and is appealable, the serious question that arises is whether or not the order first mentioned is a judgment withinthe meaning of Letters Patent. The fact, however, remains that the order setting aside the ex parte decree puts the defendant to a great advantage and works serious injustice to the plaintiff because as a consequence of the order, the plaintiff has now to contest the suit and is deprived of the fruits of the decree passed in his favour. In these circumstances, therefore, the order passed by the trial Judge setting aside the ex parte decree vitally affects the valuable rights of the plaintiff and hence amounts to an interlocutory judgment and is therefore, appealable to a larger Bench.'
10. After stating as above the Supreme Court has pointed out that 'in the course of the trial, the trial Judge may pass a number of orders whereby some of the various steps to be taken by the parties in prosecution of the suit may be of a routine nature while other orders may cause some inconvenience to one party or the other, e.g., an order refusing an adjournment, an order refusing to summon an additional witness or documents, an order refusing to condone delay in filing documents after the first date of hearing an order of costs to one of the parties for its default or an order exercising discretion in respect of a procedural matter against one party or the other. Such orders are purely interlocutory and cannot constitute judgments because it will always be open to the aggrieved party to make a grievance of the order passed against the party concerned in the appeal against the final judgment passed by the trial Judge. Thus, in other words every interlocutory order cannot be regarded as a judgment but only those orders would be judgments which decide matters of moment or affect vital and valuable rights of the parties and which work serious injustice to the party concerned. Similarly, orders passed by the trial Judge deciding question of admissibility or relevancy of a document also cannot be treated as judgments because the grievance on this score can be corrected by the appellate Court against the final judgment.'
11. After stating some more examples the Supreme Court has said : [1982]1SCR187 :
'Thus, those are some of the principleswhich might guide a Division Bench in deciding whether an order passed by the trial Judge amounts to a judgment within the meaning of the Letters Patent. We might, however, at the risk of repetition give illustrations of interlocutory orders which may be treated as judgments;
(1) An order granting leave to amend the plaint by introducing a new cause of action which completely alters the nature of the suit and take away a vested right of limitation or any other valuable right accrued to the defendant;
(2) An order rejecting the plaint;
(3) An order refusing leave to defend the suit in an action under Order 37, Code of Civil Procedure;
(4) An order rescinding leave of the trial Judge granted by him under Cl. 12 of the Letters Patent,
(5) An order deciding a preliminary objection to the maintainability of the suit on the ground of limitation, absence of notice under Section 80, bar against competency of the suit against the defendant even though the suit is kept alive;
(6) An order rejecting an application for a judgment on admission under 0. 12, Rule 6;
(7) An order refusing to add necessary parties in a suit under Section 92 of the Code of Civil Procedure;
(8) An order varying or amending a decree;
(9) An order refusing leave to sue in forms pauperis;
(10) An order granting review;
(11) An order allowing withdrawal of the suit with liberty to file a fresh one;
(12) An order holding that the defendants are not agriculturists within the meaning of the special law;
(13) An order staying or refusing to stay a suit under Section 10 of the Code of CivilProcedure;
(14) An order granting or refusing to slay execution of the decree;
(15) An order deciding payment of COURT-fees against the plaintiff.'
Item No. 13 is an order staying or refusing to stay a suit under Section 10, C. P.C., the order impugned in the instant appeal.
12. Addressing itself to a question as to the maintainability of an appeal falling outside the scope of Section 39(1) of the Arbitration Act, a Full Bench of this Court in Loyal Textile Mills Limited Madras v. Allenberg Cotton Company, etc. Tannassee, United States of America res. by its Chairman (O.S.A. No. 103 of 1989, judgment dated 3-10-1991), has gone into some details of the law on the subject and has said as follows :
'In the context of the origin of the Letters Patent appellate power of this Court and the scope and ambit of the appeal against a judgment on the Original Side of the Court, we have no hesitation in holding that, if all the conditions for an appeal against a judgment under Clause 15 of the Letters Patent arc satisfied and when there is no specific bar, merely because some other law is providing appeals against certain types of orders and says that against the other orders, there shall be no appeal to a Court, it cannot be inferred that, even if it is appealable under clause 15 of the Letters Patent, since it is not appealable under Section 39(1) of the Arbitration Act. 1940, there shall be no appeal.'
In coming to the above conclusion the Full Bench adverted to almost every aspect of the law on the subject and noticed that, 'there has been unanimity among the Chartered High Courts that the word 'judgment' in Clause 15 embraces not only judgments given in the exercise of jurisdictions specifically mentioned in the Letters Patent but also in the exercise of jurisdictions not so mentioned' and that, 'clause 15 Letters Patent of the Chartered High Courts gives a right of appeal from the judgment within the meaning of that term as used in that clause of a single Judge of the High Court to a Division Bench of that High Court and there is no qualification or limitation as to the nature of the jurisdictionexercised by the single Judge while passing his judgment provided as appeal is not barred by any statute (for example. Section 100A of the Code of Civil Procedure, 1908) and provided the conditions laid down by clause 15 itself are fulfilled.
13. Since the Supreme Court has already declared the law and we are obliged to follow it we have to hold notwithstanding the judgment of the Full Bench of this Court in Central Brokers case, : AIR1954Mad1057 (FB) (supra), that the appeal is maintainable.
14. The learned single Judge has said that the questions involved in the Original Petition No. 694 of 1991 of this Court and the proceedings in the Family Court cannot be the same although there may be a little overlapping in the matter of evidence to be adduced in both. We have, however, noticed that Radhika has moved the Family Court at Bombay in a suit for divorce which is under Section 13(1A) of the Hindu Marriage Act, 1955 and a declaration that she is entitled to the custody of her minor child. The Hindu Marriage Act, 1955 has got a salutary provision in Section 26 thereof which reads as follows :
'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 by 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.'
15. A mere glance to this provision shows that in a suit seeking divorce, the Court can make provisions in the decree itself with respect to the custody of the child and may after the decree upon application by petitionfiled for the purpose, make from lime to time, all such orders and provisions with respect to the custody, maintenance and education of such children as might have been made by such decree. Thus the prayer in the Family Court suit at Bombay for a decree cannot be equated with the decree for interim custody in the sense of an order pendente lite.
16. In most of the cases custody orders have to be made for limited purpose. No minor can be ordered to be always in custody of another, the limit being the statutory age of majority. Once however, the question of custody of a minor child is an issue on fact and law in the proceeding before the Family Court, if the same issue is brought between the same parties in another Court, the judgment of one delivered earlier has to be operated as res judicata is the other.
17. It is not necessary, as has been held by different High Courts and about which there is a consensus of judicial opinion, that the matter directly and substantially is issue in former as well as subsequent suits, should be the same in all respects. After referring to quite a few decisions on the subject cited at the Bar a learned single Judge of the Patna High Court in Fulchand Motilal v. Manhar Lall, : AIR1973Pat196 , has said (at pp. 197 and 198 of AIR):
'I do not propose to deal with these cases because, while they are undoubtedly instructive, they do no more than illustrate the true scope of S. 10 of the Code. In my opinion, therefore, it will be more profitable to examine the requirements of S. 10, the provisions of which are really not in doubt. Under this section, the Court is prohibited from proceeding with the trial of a suit where two conditions exist, namely, (i) where there is a previously instituted suit between the same parties, and (ii) where the matter directly and substantially in issue in both the suits is the same. The first of these requirements of S. 10 can present no difficulty, and, for determining whether the second one exists or not, the court has to direct its attention to the pleadings of both the suits and to determine what is the matter directly and substantially in issue in the two suits. Having ascertained this,the Court has further to consider whether or hot the matter directly and substantially in issue in both the suits is the same. The test to be applied for this purpose is not whether the cause of action or the reliefs claimed in both the suits are the same, nor whether one of the issues arising in both of them is the same. The test is whether the decision of the matter directly and substantially arising in the former suit will decide not merely that suit, but will also operate as res judicata in the subsequent suit between the same parties. It will be noticed that the expression 'directly and substantially in issue', which has been employed in S. 10, is also to be found in S. 11 of the Code. While S. 10 relates to res sub judice that is, a matter which is pending a judicial adjudication, S. 11 relates to res judicata, that is to say, a matter already adjudicated upon by a competent Court. Whereas S. 10 bars the trial of a suit in which the matter directly and substantially in issue is pending adjudication in a previous suit. Section 11 bars the trial of a suit or an issue in which the matter directly and substantially in issue has already been adjudicated upon in a former suit. The object of both the sections is similar, namely, to protect the parties from being vexed twice, for the trial of the same cause and to achieve the public policy that there should be an end of litigation. Therefore, one of the objects of S. 10 is to prevent competent Courts of concurrent jurisdiction from having to try parallel suits in respect of the same matter in issue, and thereby to pave the way for the application of the rule of res judicata contained in the next following section. So, what the Court has really to see is if the decision of the matter directly and substantially in issue in the former suit will or will not lead to the decision of the matter directly and substantially in issue in the subsequent suit, and if it is satisfied that it will, then it must stay the trial of the subsequent suit and await the decision in the former suit.'
18. A similar view is also taken by a Bench of the Calcutta High Court in A. G. Industries Ltd. v. Rishabh Manufacturers, : AIR1972Cal128 , wherein it has said (at p. 139 of AIR) :
'The matter for determination in the case of an application for stay under S. 10 is not what the basis of the claim in the two suits is but what is the matter in issue in the two suits. The two different bases of claim, namely, one based on a contract and the other on a tort would not make the matter in issue in the two suits different merely on that ground. If a claim based on a contract in one suit, is sought to be avoided and repelled on the ground of fraudulent misrepresentation and a subsequent suit is filed claiming damages on the basis of a fraudulent misrepresentation with regard to the same contract, the issues nevertheless in the two suits would be substantially the same, even though the bases of the claim in the two suits are altogether different.'
19. There is a special Act called the Hindu Minority and Guardianship Act (XXXII of 1956) which in S. 4(a) defines a 'minor' to mean a person who has not completed the age of eighteen years and in S. 4(b) a 'guardian' to mean a person having the care of the person of a minor or of his property or of both his person and property and includes -- (i) a natural guardian, (ii) a guardian appointed by the Will of the minor's father or mother, (iii) a guardian appointed or declared by a Court, and (iv) a person empowered to act as such by or under any enactment relating to any Court of Wards; and in S. 4(c) 'natural guardian' to mean any of the guardians mentioned in S. 6, namely, in respect of the minor's person as well as in respect of the minor's property, in the case of a boy or an unmarried girl -- the father, and after him, the mother; provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother; in the case of an illegitimate boy or an illegitimate unmarried girl -- the mother and after her, the father and in the case of a married girl -- the husband. The powers of the natural guardian are circumscribed by the provisions in S. 8 of the said Act which besides other things, states that the Guardians and Wards Act, 1890, shall apply to and in respect of an application for obtaining the permission of the Court under sub-sec. (2) in all respects as if it were an application for obtaining the permission ofthe Court under S. 29 of the Act (VIII of 1890) and in particular proceedings in connection with the application shall be deemed to be proceedings under that Act within the meaning of S. 4A thereof; and the Court shall observe the procedure and have the powers specified in sub-sees. (2), (3) and (4) of S. 31 of that Act, and that an appeal shall lie from an order of the Court refusing permission to the natural guardian to do any of the acts mentioned in sub-sec. (2) of this section to the Court to which appeals ordinarily lie from the decisions of that Court.
20. The provisions in the Guardians & Wards Act, however, show that the natural guardian needs no order by the court for exercising the powers of a natural guardian and that in case a ward is found leaving or removed from the custody of the guardian the power is given to the Court to make suitable orders. Section 25(1) of this Act reads as follows :
'If a ward leaves or is removed from the custody of a guardian of his person, the Court, if it is of opinion that it will be for the welfare of the ward to return to the custody of his guardian, may make an order for his return and for the purpose of enforcing the order may comes the ward to be arrested and to be delivered into the custody of the guardian.'
21. We do not propose, since we are not disposing of O.P. No. 694 of 1991, to say anything on the question as to why then the respondent has filed a petition for a declaration that he is the guardian when in the Bombay case it is clearly stated that he is the father of the child and a prayer has been made for the custody of the child by the appellant Radhika, his wife if not for the purpose of getting some order for the custody of the child, a matter which is directly and substantially in issue in the Family Court at Bombay.
22. It is not in dispute that the child is below five years. Ordinarily thus the custody has to be with the mother. The mother has accordingly prayed for a decree for such a custody in the Family Court at Bombay. Thefather, who is the respondent can have every say and thus can say to the Court that the child's custody with the mother may not be in the interest of the child. We are constrained to observe that the suit that has been filed in this Court by the respondent has brought in substantially the same questions of fact with respect to the custody of [he child which have to be decided by the Family Court. We are not, therefore, in agreement with the view expressed by the learned single Judge that the questions involved in O.P. No. 694 of 1991 in this Court and the proceedings in the Family Court cannot be the same although there may be a little overlapping in the matter of evidence to be adduced in both.
23. Since we are of opinion that the suit in this court should be stayed until the disposal of the issue as to the custody of the child in the Family Court at Bombay we have no hesitation in holding that any direction on the application of the respondent-husband as to the right of the respondent visiting the child or to take away the child as long as he desired for the outings subject to his leaving the child in the custody of the wife while returning from Bombay will not be justifiable. We have no reason to think that the Family Court where the issue is pending shall not exercise its judicial discretion properly and shall not thus bestow all relevant considerations to the rights of the respondent-husband vis-a-vis that of the wife (appellant) as well as their liabilities and responsibility. It shall always be open to any of the parties including the respondent to move for appropriate directions before the Family Court where the suit for divorce in which a decree for custody of the child is sought for is pending.
24. In the result both the appeals are allowed and the impugned orders are set aside. Application No. 69 of 1992 is allowed and O.P. No. 694 of 1991 is stayed until the disposal of the suit in the Family Court at Bombay, viz., M. J. Petition No. A- 1744 of 1991. In so far as the relief as to the custody of the child is concerned Application No. 6404 of 1991 is dismissed. In the facts and circumstances of the case, there shall be no order as to costs.
25. Order accordingly.