WP 5817/10 1 SSK/12 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.5817 OF 2010 Shaheen Mohammed Afzal Ansari ....Petitioner Versus Mohamad Afzal Islam Ansari ...Respondent Mr. R. R. Salvi i/b. MS. S. B. Telgote, Advocate for the Petitioner. Ms. Sana Hakim, Advocate for the Respondent. CORAM : R. V. MORE, J. DATED : 16th AUGUST, 2010. P.C.: Heard. 2. Rule. Rule made returnable forthwith by consent and since, short point is involved, the petition is taken up for hearing. 3. Brief facts giving rise to the present petition are as follows: The Petitioner and Respondent both are Muslim by religion. The Respondent-husband filed M.J.Petition bearing No.A-1754 of 2009 for restitution of conjugal rights against the Petitioner-wife in the Family Court at Bandra. The Respondent – husband also filed an interim application no. 205 of 2009 for the custody of minor son born out of wedlock between the WP 5817/10 2 SSK/12 Petitioner and Respondent. It is the case of the Petitioner that she was served with only Show Cause Notice of interim application and summons of the M.J.Petition No.A-1754 of 2009 was never served upon her. The said interim application is pending before the Family Court. The Petitioner on 13th November, 2009 by filing application requested adjournment of the main petition on the ground that she wants to engage services of a Lawyer. On this application, the Family Court passed the following order on 13th November, 2009: “Ninety days have passed. Written Statement is not filed within 90 days. Hence proceed without written statement. Order may be passed”. The Petitioner thereafter filed an application at Exhibit “17” for setting aside “No Written Statement Order”. This application was also rejected by the impugned order and therefore, the present petition. 4. Mr. Salvi, learned Counsel for the Petitioner contended that the summons of the M.J.Petition No.A-1754/2009 was never served and therefore, there is no question of running out of period of limitation of 90 days as contemplated under Order 8 Rule 1 of the Code of Civil Procedure, 1908 and therefore, the Family Court should not have rejected the WP 5817/10 3 SSK/12 Petitioner’s application at Exhibit “17” and should have accepted the Petitioner’s written statement on record. 5. The learned Counsel for the Respondent supported the impugned order by submitting that the Show Cause Notice of interim application was served upon the Petitioner in which there is a reference of pendency of M.J.Petition No.A-1754/2009. She also submitted that no case is made out for condonation of delay occurred in filing the writ petition and therefore, the petition should be dismissed. 6. Having considered the rival submissions of the learned Counsel for the respective parties, I find merit in the petition. I have perused the Show Cause Notice annexed at Exhibit “B” page 24 of the petition. The Show Cause Notice is issued in Form No.4. A copy of the application filed by the Respondent is attached alongwith the said notice. However, the copy of the main petition was not annexed alongwith it. Summons of the main petition has to be issued as per Form No.I. In the absence of summons of the main petition, the period of 90 days under Order 8 Rule 1 of the Code of Civil Procedure, 1908 will not begin. The Respondent could not point out anything to show that the Petitioner was served with summons of the main petition, till today. In the circumstances, in my view, the learned Judge of the Family Court committed an error in proceeding with the WP 5817/10 4 SSK/12 petition without written statement. He further committed an error in rejecting the Petitioner’s application at Exhibit 17 for setting aside the “No Written Statement Order”. The impugned order, thus, cannot be sustained. The Petition is disposed of, by passing the following order: 1. The impugned order is quashed and set-aside. The Petitioner’s application at exhibit “17” in M.J.Petition No.1754 of 2009 is allowed. 2. The Petitioner is permitted to file written statement within a period of two weeks from today. 3. In the interest of justice, the Family Court is directed to decide the Respondent’s interim application for the custody of minor child as expeditiously as possible. (R. V. MORE, J.)