1 WP 620.11.sxw JPP IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CIVIL JURISDICTION WRIT PETITION NO. 620 OF 2011 Mr. Bhalchandra Dattaram Korgaonkar. ... Petitioner. V/s. Mrs. Chitra Vasant Shirsat. ... Respondent. Mr. Rahul L. Nerlekar for the Petitioner. Mr. Mandar Soman with Mr. Sanskar Marathe for the Respondent. CORAM : R.Y. GANOO, J. DATED : 7th APRIL 2011. P.C. :- The Petitioner has filed proceedings under the Hindu Marriage Act in the Family Court at Bombay being M.J. Petition No.A-2379 of 2008. In the said Petition the Petitioner filed an application for interim custody at Exhibit 56. The said application at Exhibit 56 is decided by the learned Judge of the Family Court by order dated 7th December 2010 and the said application for interim custody is rejected. This Petition is filed by the Petitioner so as to challenge the order dated 7th December 2010. 2. I have heard learned Counsels on both sides at the stage of admission. Learned Counsels on both sides informed the 2 WP 620.11.sxw Court that orders regarding access of the minor child Balkrishna are passed and the Petitioner is in a position to enjoy the said access without any problem. 3. The Petitioner filed application at Exhibit 56 for interim custody on the ground that the Respondent is staying at her parents place at Vasai and surrounding nearabout the residence of the Respondent is not good and the situation at residence at Vasai is not congenial for the growth of the child. The learned Counsel for the Petitioner has placed reliance on the report conducted by Bombay Hospital in regard to the child so as to name various substances with which said child is allergic. 4. I have perused the said report. The said report takes care of more than 100 items and for some of the items the child is shown to be allergic. At the foot of the report observations are made which are as follows :- “ Allergic to pollen dust mite and Aspergiles. Strong allergy to passive smoking Early stage of developing allergic asthma.“ The learned Counsel for the Petitioner placed heavy reliance on this report and submitted that if the child is allowed to reside at the house where the Respondent is staying at Vasai, it would be against in the interest of the child. In so far as this report is concerned, the said report does not bare signature of the doctor. Even without signature if the report is perused, it 3 WP 620.11.sxw is seen that the child is allergic to dust mite. The presence of dust mite in the house is very common and it is just not possible to accept the stand of the Petitioner that the house of the Petitioner is free of dust mite. Nothing specific is stated before the Court that in the premises where the Respondent is residing there are chances of the child developing allergy on account of pollen dust. No special facts are pleaded. Same is the position as far as aspergiles is concerned. 5. It has been the stand of the Petitioner that the Respondent is staying alongwith her father and the Respondent’s father is smoking and that is affecting the child. The learned Counsel for the Respondent, upon instructions from the Respondent who is present in the Court stated that father of the Respondent i.e. grand father of the child is not smoking. I am inclined to accept the statement made by the Respondent as in my view there is no reason for the Respondent to make a false statement on this count. 6. After having considered the entire matter, I am inclined to observe that even if it is accepted that the child is suffering from allergic asthma, looking to the fact that the Petitioner is residing at Ramesh Nagar, Andheri (West), Bombay, it is not as if that situation at the house of Petitioner would be different from the house where Respondent is residing. It is difficult to accept that the child would be able to stay at the house of the Petitioner free of allergy. Presently the child is with the Respondent. The child is aged about 3-4 years and attending 4 WP 620.11.sxw school in Vasai. The main stand of the Petitioner that the health of the child is unsafe if the child remains in Andheri cannot be accepted. In my view, the learned Judge has approached the problem in the proper perspective. 7. In my view, the Petitioner is not entitled to interim custody on the grounds put up in application at Exhibit 56 and no interference is required in the impugned order. 8. For the reasons mentioned aforesaid, the Petition is required to be dismissed at the stage of admission. 9. Hence, following order is passed :- (i) The Petition is dismissed at the stage of admission. (ii) There shall be no order as to costs. (R.Y. GANOO, J.)