HONOURABLE MR.JUSTICE B.PRAKASH RAO AND HONOURABLE MR.JUSTICE G.BHAVANI PRASAD F.C.A.No.253 of 2009 JUDGMENT: (Per Hon’ble Mr.Justice B.Prakash Rao) Heard both sides, and at their request, the main appeal itself is taken up for disposal. The appellant herein is the divorced wife, who files this appeal inter alia seeking to assail the judgment and decree in F.C.O.P.No.1019 of 2008 dated 22/09/2009 on the file of the Family Court-cum-XXIII Additional Chief Judge, Hyderabad, allowing the application filed by the respondent herein for the custody of their minor child. Though the case has been sought to be argued on merits from both sides, however, the main grievance in this appeal is that the appellant was not given proper opportunity. The case of the appellant who is the mother of the child is to the effect that she is entitled for the custody of the minor child being a natural guardian. The said application was contested by the appellant herein denying about respondent’s entitlement and also the correctness of such request in view of the welfare of the child. The Court below conducted an enquiry wherein on behalf of the respondent, P.W.1 was examined and Exs.P-1 to P-3 were marked. The appendix shows as no evidence was recorded on behalf of the respondent. Taking into consideration the said evidence and material on record, the application has been allowed with certain directions in regard to the visiting rights. Hence, the appeal. The main submission made on behalf of the appellant is to the effect that during the course of the trial in the Court below, the evidence on behalf of the respondent was closed on 05/09/2009. Thereafter, the matter was posted on 17/09/2009 for the evidence of the appellant. However, having regard to the illness and major neck surgery, she could not present and therefore, she filed an application in I.A.No.244 of 2009 seeking for further adjournment, but the said application was dismissed and the matter was posted on 22/09/2009. The main OP was disposed of on that day. Hence, it is requested that it would suffice in the interest of justice if an opportunity is given to the appellant to produce evidence in support of her case. There is no denial on the aforesaid aspect as pointed out on behalf of the appellant as to the effect that there is no evidence produced on behalf of the appellant and there is also no denial to the effect that the application filed by the appellant in I.A.No.244 of 2009 was dismissed and immediately on the next date of hearing the matter was disposed of. Hence, it is quite apparent that the appellant has no opportunity. In view of the same, an opportunity should be given to the appellant to substantiate her case by producing the evidence since the appellant has undergone major neck surgery as supported by the medical certificate. In view of the same, the appeal is allowed and the judgment and decree in F.C.O.P.No.1019 of 2009 dated 22/09/2009 are set aside. The lower Court is directed to dispose of the OP on merits and in accordance with law after giving notice and opportunity to both sides. It is needless to mention that the interim order which has already been made in regard to the visiting rights in I.A.No.975 of 2007 dated 12/12/2007 which has been confirmed in the revision by this Court in C.R.P.No.670 of 2008 dated 29/02/2008 shall continue to remain in operation till disposal of the said OP. No order as to costs. _________________ B.PRAKASH RAO, J ____________________ G.BHAVANI PRASAD, J Date: 26-11-2009 SKM