IN THE HIGH COURT OF JUDICATURE AT PATNA M.A. No.223 of 2004 1. DR.RAM NATH PRASAD, S/O LATE BHOLA PRASAD 2. MOSTT. KAUSHALYA DEVI, W/O LATE BHOLA PRASAD BOTH RESIDENTS OF MOHALLA NAWAB BAHADUR ROAD, PATNA CITY, P.S. KHAJEKALAN, DISTRICT PATNA .. APPELLANTS Versus SANGEETA KUMARI, D/O SRI District Education Officer MOHAN LAL DAS, R/O MOHALLA NAWAB BAHADUR ROAD, PATNA CITY, P.S. KHAJEKALAN, DISTRICT PATNA .. RESPONDENT **** For the appellants .. M/S Ajay Kumar Thakur, Imtiyaz Ahmad & Amit Kumar, Advs. For the respondent .. M/S Nagendra Kumar Singh & Ashok Kumar Singh, Adv. **** /10/ 29.07.2010 Heard the counsel for the parties. 2. This appeal is directed against the order, dated 14.04.2004, passed in Guardian Case No. 7 of 2000 by the Additional Principal Judge, Family Court, Patna, by which he has rejected the petition under Sections 7 and 9 of the Guardian and Wards Act of the appellants on the ground that a divorce case is pending and the appellants can obtain an order under Section 26 of the Hindu Marriage Act. The learned counsel for the appellants, however, contends that - 2 - mere pending of a divorce case between the parties is no ground to reject the petition for guardianship under the Guardian and Wards Act. 3. The learned counsel appearing for the other side, however, points out that the boy is living with his mother and there is several facts, on merits and hardship to the wife and further that the child is living at Muzaffarpur along with his mother and even raise the jurisdiction of the Family Court, Patna. However, those facts though not on record and more particular the petition has been dismissed not on those grounds, but, on the ground that the divorce case, being Matrimonial Case No. 98 of 1999, is pending, hence, the guardianship is not required and the appellant can file a petition in the said divorce case under Section 26 of the Hindu Marriage Act. However, the learned counsel for the respondent did not counter the ground on which the petition is dismissed, nothing has been pointed out by the learned counsel for the respondents that the ground on which the petition has been dismissed sustainable. Hence, having regard to the fact that the ground on which the petition under Guardian and Wards Act has been - 3 - rejected, it is not sustainable in law and is hereby set aside. The Miscellaneous Appeal is allowed and the case is remitted back to lower Court to decide the matter in accordance with law. The learned counsel for the respondent, however, may take the plea about the maintainability and other points in the Court below. Cp:2/S.A. (Gopal Prasad, J. )