1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR WRIT PETITION NO.4803 OF 2009. ( Jyotsna Rahul Dharmadhikari ..vs.. Rahul Deepk Dharmadhikari) WITH MISC.CIVIL APPLICATION (TRANSFER) NO.628 OF 2010. ( Jyotsna Rahul Dharmadhikari ..vs.. Rahul Deepk Dharmadhikari and ors.) ......................................................................................................................................................... Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's order of directions and Registrar's orders ......................................................................................................................................................... Mr.Neeraj Patil, Adv. for the petitioner. Mr.S,P.Dharmadhikari, Sr.Counsel with Mr.D.V.Chavan and A.V.Khare Advocates for the respondent. CORAM : R. K.DESHPANDE, J. DATED : 19th OCTOBER, 2010. 1. This writ petition challenges the order dated 23rd September, 2009, passed by the learned Principal Judge, Family Court at Nagpur on the application (Exh.13) filed by the respondent for restoration of the custody of minor child namely; Eeshane. By this order, the Family court has allowed the application and directed the petitioner herein to restore the custody of minor child forthwith as it was prior to 22/8/2009. The contention of the respondent was that till 2 22/8/2009 the custody of the minor child was with him and it was on 22/8/2009 that the child was taken away by the petitioner, who is the mother of the child, without consent and knowledge of the respondent. 2. The petitioner, in spite of the opportunity being given did not file reply on or before the date of decision. Hence, the Family Court passed an order holding that during the pendency of the main petition the custody of the child was removed from the respondent and hence the order for restoration of the custody has been passed. Being aggrieved by it, the present writ petition has been preferred by the mother of child, who is the wife of respondent. 3. It is informed by the learned counsel for the parties that the matter has now been assigned to the Family Court no.3 at Nagpur. It is not in dispute that when the matter was heard and order impugned was passed, the petitioner had not filed reply and the matter was not argued for and on behalf of the petitioner. Hence, on this sole ground the order impugned is liable to be set aside with a direction to the Family Court to decide the application (Exh.13) afresh. 3 4. The learned counsel for the parties inform that after the order impugned was passed by the Family Court, the custody of the child was handed over to the respondent and the child is in the custody of the respondent. During the pendency of this petition, an order was passed by this court on 14th June, 2010, which reads below - “That, by order dated 29/4/2010 this court has permitted the petitioner to meet the child on 2nd and 16th May, 2010 and allowed the custody of the child with the petitioner from 9.30 morning till 6.30 evening on those two days. The same arrangement in respect of visitation opportunity to the petitioner and custody of child for a limited period between 9.30 morning till 6.30 evening shall continue on every Sunday till the decision of the petition. S.O. to 24.6.2010.” The learned counsel for the parties agreed for continuation of such arrangement till the decision of the application (Exh.13). 4 5. In view of the above, the Family Court is directed to decide the application within a period of fifteen days. The parties are at liberty to file application for amendment of pleadings or even to file fresh application, if they so desire. The petition, thus, stands disposed of in the aforesaid terms. M.C.A.No.628 of 2010 also stands disposed of. JUDGE pzc