1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD FIRST APPEAL NO.1557/2009 POURNIMA SANJAY NAGAR V/S SHRIKANT GANPATDAS GUJARATHI With CIVIL APPLICATION NO.1375/2009 ... Shri S.P.Brahme, Advocate for appellant Shri B.T.Bodkhe, Advocate for respondent. ... CORAM : R.K.DESHPANDE, J. Dated : August 5, 2009 PER COURT :- 1. This appeal challenges the judgment and order dated 19.10.2007 passed in Misc. Civil Application No.29 of 2007 by the learned District Judge-I, Shrirampur, District Ahmednagar, directing the appellant to handover custody of minor child Aishvarya to respondent – her father. 2. The facts, in brief, are as under:- Marriage between appellant and respondent was performed on 22.2.1994. Out of the said wedlock, girl child Aishvarya was born on 17.1.1995. On 20.22003, appellant along with daughter left the matrimonial home at Newasa, District Ahmednagar and went to Satara – parental home of the 2 appellant. The appellant had filed H.M.P.No.78 of 2006 in the court of the learned Civil Judge (S.D.) Satara, in which decree for dissolution of marriage was passed on 18.9.2006. It is the contention of the respondent that it was an ex parte decree. However, for the present, we are not concerned with that issue. 3. On 3.11.2006, appellant married with one Sanjay Nagar and started residing at Varanasi in the State of Uttar Pradesh along with Aishvarya. Misc. Civil Application No.29 of 2007 was filed by the respondent on 20.6.2007 under Section 7 of the Guardians and Wards Act, for custody of minor child, on various grounds enumerated in the petition. It is pointed out that the summons of Misc. Civil Application was tried to be served upon the appellant at her address at Satara on 2.7.2007. However, the Bailiff Report shows that the appellant refused to accept the said summons. As a result, the trial court passed an order on 24.7.2007, proceeding ex parte against the appellant. On 19.10.2007 order came to be passed in the said Application directing appellant to hand over custody of minor child to respondent within the period of thirty days from the date of the order. Said order is subject matter of the present appeal, at the instance of the wife. 4. It is alleged that the appellant came to know about this order for the first time on 28.12.2008 when she received the notice from the respondent, through his Advocate, at Varanasi and thereafter, she has immediately approached this Court challenging the same. It is the contention of the learned counsel for the appellant that summons of the application was not served upon her. According to learned counsel, the report of Bailiff 3 although indicated that on 2.7.2007, the appellant was sought to be served but she refused to accept the summons, in fact she was not at Satara on that day but was at Varanasi and staying with her husband. The appellant, therefore, raises a question of correctness of the report of the Bailiff, on the basis of which, the trial Court passed an ex parte order on 24.7.2007. 5. This Court, by an order dt.3.2.2009 granted stay in terms of prayer clause (C) of the Civil Application, as a result of which, the custody of the minor girl child remained with the appellant. 6. Without going into the controversy involved in the present case about the correctness of the report of the Bailiff, the instant matter can be sent back to the trial court for deciding it afresh, after giving an opportunity to appellant to file her written statement and contest the claim. The appeal needs to be allowed. 7. In the result, the appeal is allowed. Impugned judgment and order dated 19.10.2007 passed in Misc. Civil Application No.29 of 2007 by the District Judge-I, Shrirampur, District Ahmednagar, directing the appellant to handover custody of minor child Aishvarya to respondent – her father is quashed and set aside. The parties are directed to appear before the District Judge-I, Shrirampur on 10.9.2009. There shall be no need to issue fresh summons to the appellant. The trial Court shall fix the calendar of this matter in the presence of the parties on 10.9.2009. The appellant shall be provided an opportunity to file her written statement and raise all such contentions, which are available to her, including the point of territorial jurisdiction of the 4 Court at Shrirampur to entertain and decide the application. All issues are kept open. No order as to costs. 8. Record and proceedings be remitted back to the trial Court forthwith. 9. In view of the disposal of the appeal itself, Civil Application does not survive and it stands disposed of accordingly, with no order as to costs. (R.K.DESHPANDE,J.) ... akl