( 1 ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD FIRST APPEAL NO. 896 OF 2009 Sohaib Ahmed s/o Sikandar Kazi, Age: 38 years, Occ: Business, R/o. Kazi Galli, Naldurg, Tq. Tuljapur, Dist.Osmanabad. .. Appellant Versus Shafik Ahmamad s/o Rafik Ahamad Kazi, Age: 38 years, Occ: Business, R/o C/o India Xerox, Near P.W.D. Office, Samata Nagar, Osmanabad, District Osmanabad. .. Respondent WITH CIVIL APPLICATION NO.5105 OF 2009 ... Mr. M.P. Tripathi, Advocate for the appellant. Mr. Y.M. Khan, Advocate h/f. Mr. K.G. Kader, Advocate for respondent sole. ... CORAM : P.R. BORKAR,J. DATED : 23.04.2010 P.C. :- With the consent of the parties, this appeal is taken up for final hearing at the admission stage. Heard learned ( 2 ) Counsel for the parties. 2. This is an appeal directed against the order of custody of child passed by the Adhoc District Judge, Osmanabad in M.C.A. No. 83 of 2007 decided on 21-04-2009. 3. Briefly stated the facts giving rise to the present appeal are as under: It is no more disputed that the present appellant Sohaib Ahmed is maternal uncle of child Inzamam, who is son of respondent Shafik Ahamad. Respondent Shafik Ahamad had married Atikabegum, who was sister of the present appellant. Their marriage took place in the year 1996 and Atikabegum started residing initially at Jalna and then at Aurangabad with the respondent, who was then working as a Teacher in Fatima Urdu School at Jalna. In the year 1997 Inzamam was born to Atikabegum and the respondent. Atikabegum expired due to burn injuries on 05-03-2000 at Aurangabad. It is also not disputed that the present respondent and members of his family faced criminal prosecution and the prosecution ended in acquittal. After death of Atikabegum, Inzamam who was a ( 3 ) small child lived with his mother's mother i.e. mother of present appellant. He has been residing with her even now. It is also not disputed that the present respondent Shafik Ahamad has remarried with one Haseena d/o Khalil Kazi and leading his marital life with Haseena and has three children from her. 4. It is the case of the present respondent that he had filed application on 11-06-2007 for custody of Inzamam. That after the death of Atikabegum, at the request of the appellant, the respondent allowed Inzamam to remain with mother of the appellant. It is also stated that the respondent used to visit Inzamam at Naldurg, as he was having love and affection for his minor son Inzamam. Even he executed gift deed in favour of his minor son, of house property and landed property. Landed property is still in possession of respondent, but the house property is in custody of the appellant. It is also stated in Para-11 that Inzamam who was then in 4th Class was having fault in eight sight and needed treatment which the respondent was ready to render. According to the respondent, for development of personality and good future of Inzamam, it is necessary to ( 4 ) give him in custody of the respondent and therefore, he asked for the custody of Inzamam. 5. It is pointed out by Mr. Y.M. Khan, Advocate of the appellant, after referring to the Record and Proceedings of the trial Court that the matter was adjourned several times but the present appellant never turned to the Court. Neither any say is filed for the application nor respondent/applicant was cross examined. Even the child was not produced before the Court inspite of directions. So, the Court was pleased to pass the order of handing delivery of custody of child to the respondent/petitioner on or before 30-04-2009. This order is challenged in the present appeal. 6. Mr. M.P. Tripathi, Advocate of the appellant argued that the present appellant was under misconception that if he approached the Court with the child, custody of the child would be taken by the respondent forcibly. So, he did not attend the Court. However, he raised certain questions. He stated that Atikabegum had died due to burn injuries. There was criminal prosecution against the respondent and his family members. Due to certain developments, the property ( 5 ) was transferred in the name of Inzamam. According to him, wish of the child and bona fides of offer by the respondent, deserves to be verified. Learned Advocate of the appellant also stated that his client is ready to co-operate and will abide by the conditions put forth by the Court. Matter may be remanded to the trial Court so that he will have one more opportunity to place his case before the Court. 7. Having regard to all circumstances and considering the situation, in my opinion, it is in the interest of justice and welfare of the child that the matter should be remanded. In the result, the order dated 21-04-2009 passed by the Adhoc District Judge, Osmanabad in M.C.A. No. 83/2007 is hereby set aside, subject to condition that the appellant shall deposit amount of Rs.3000/- (Rs.Three Thousand only) towards cost of the respondent within period of one month from today, in the District Court, Osmanabad. In case, such amount is not deposited within time, this appeal shall stand dismissed automatically and order dated 21-04-2009 shall stand confirmed. 8. In case, the amount is deposited in time, District Court ( 6 ) shall take M.C.A. No.83/2007 on its file. Parties shall appear before the District Court, Osmanabad on 10-06-2010, at 11-00 a.m. on which date, present appellant who is original respondent, shall file his say to the application and on that day, child Inzamam may also be produced before the District Court so that District Court may have interaction with the child. The child Inzamam shall be produced before the District Court as and when directed by the Court thereafter. The District Court thereafter shall decide the matter on merits. The District Court is directed to dispose of the application within two months from 10-06-2010. 9. In the meantime, in order that present respondent Shafik may have access to his son Inzamam, it is directed that the present appellant and his family members shall allow present respondent Shafik to take Inzamam to his house at Osmanabad in the morning of Saturday and shall take back the child Inzamam to Naldurg and hand over it to the present appellant on next day evening i.e. Sunday evening. Father Shafik will have access to his child every week. Shafik shall take care of his child Inzamam while Inzamam is in his custody. It is for respondent Shafik to take Inzamam on every Saturday and ( 7 ) hand over the custody to the appellant Sohaib and his family members on Sunday evening. This order shall come into force from 01-05-2010. 10. Registry to send back Record and Proceedings to the District Court, Osmanabad immediately. This order be intimated to the District Court forthwith. The appeal is accordingly allowed and disposed of. 11. In view of the final disposal of the appeal, Civil Application No. 5105 of 2009 does not survive and hence, is disposed of, as such. [P.R. BORKAR,J.] sut/APR10/fa896.09