1 WP-6976-11.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE JURISDICTION WRIT PETITION NO.6976 OF 2011 Shirish Bhalchandra Ghan ..Petitioner Vs Anupama Shirish Ghan ..Respondent -- Mr.N.R.Bubna, for petitioner. Mr.Ajit Kulkarni with Mr.Hitesh Vyas, for respondent. -- CORAM : R.G.KETKAR, J. DATE : 27 th SEPTEMBER, 2011 P.C.: Heard Mr.N.R.Bubna, learned counsel for the petitioner and Mr.Ajit Kulkarni, learned counsel for the respondent. 2] Rule. Mr.Kulkarni waives service. By consent of the parties, Rule is made returnable forthwith and is heard finally. 3] By this petition, the husband challenges the judgment and 2 WP-6976-11.sxw order dated 10 th May, 2011 passed by the learned Principal Judge, Family Court No.1, Pune below Exhibit 77 in P.D. No.147 of 2008. By that order, the learned Principal Judge of the Family Court dismissed the application made by the petitioner for issuance of warrant of arrest against the respondent for non compliance of the order of handing over custody of minor children to the petitioner-father in the presence of the Court Councellor as also for striking off the defence of the respondent in the light of the repeated flouting of order and willful non-compliance of the order. 4] Mr.Bubna strenuously contended that the respondent wife has repeatedly flouted orders passed by the Family Court and did not give access of the minor children to the petitioner. He invited my attention to the purshis filed by the petitioner placing on record the list of number of days on which the order was flouted by the wife. He further submited that on 25 th April, 2011, the learned Principal Judge has directed the respondent to give custody of the minor children to the petitioner on 2 nd May, 2011 and the petitioner was directed to return both the children to the respondent on 7 th May, 2011. However, the respondent did not comply that order as well. In view of 3 WP-6976-11.sxw this, the petitioner took out application exhibit 77 praying for the aforesaid reliefs. The respondent filed her reply at exhibit 78 and after hearing both sides, the learned Principal Judge dismissed the application. 5] Mr.Bubna submitted that in so far as the prayer clause (ii) of the application at exhibit 77 is concerned, the learned Judge has not discussed anything as to whether the petitioner has made out a case for striking off the defence of the respondent. 6] On the other hand, Mr.Kulkarni supported the impugned order. He submitted that the children were interviewed by the learned Judge of the Family Court and they were not ready and willing to spend a day and night with their father and the interim order is to be made as per Section 26 of the Hindu Marriage Act, 1955. 7] I have considered the rival submissions made by learned counsel for the parties. Perusal of the impugned order indicates that in so far as the prayer clause (ii) of the application at exhibit 77 is concerned, the learned Principal Judge of the Family Court has not at 4 WP-6976-11.sxw all discussed as to whether the petitioner has made out a case for striking off the defence of the respondent. Since this aspect is not at all dealt with in the impugned order, I have no option but to set aside the impugned order and remand the case to the Family Court for deciding the application afresh. 8] Hence, petition is disposed of in the following terms : (i) The impugned order dated 10 th May, 2011 passed by the learned Principal Judge, Family Court at Pune below exhibit 77 in P.D.147 of 2008 is quashed and set aside. (ii) The application at exhibit 77 is restored to the file of the Family Court, Pune. (iii) The Family Court is directed to hear and decide the said application on its own merits and in accordance with law as expeditiously as possible and, at any rate, within a period of two months from production of this order by either party before the Family Court. 5 WP-6976-11.sxw (iv) Rule is made absolute accordingly with no order as to the costs. [R.G.KETKAR, J.]