1 srk IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE FAMILY COURT APPEAL NO.110 OF 2009 Smt.Kanchan Subhashrao Waghule Appellant Vs. Shri Manik Goraknath Bankar Respondent Mr.P.J.Pawar for appellant. Mr.Abhijeet Kandarkar for respondent. CORAM: B.H.MARLAPALLE & S.J.VAZIFDAR,JJ. July 6, 2009. P.C. 1. Heard Mr.Pawar, the learned counsel for the appellant. 2. Admit. Mr.Kandarkar, the learned counsel for the respondent waives service. 3. As the impugned order has been passed ex parte so far as the present appellant is concerned, with the consent of the 2 parties the appeal has been heard finally forthwith. 4. The appellant’s daughter Suvarna was married to the respondent on 28/12/2003 at Alandi as per the Hindu Vedic Rites and from the said wedlock the couple begot daughter Manasi, born on 3/11/2004. Suvarna was hospitalised for some treatment on 28/6/2006 and consequently her daughter Manasi was staying with the appellant. Ultimately Suvarna expired on 4/11/2006 and her daughter Manasi continued to be in the custody of the appellant. On or about 14/2/2007 the respondent -father of Manasi and son-in-law of the appellant filed a petition under Section 6 of the Hindu Minority and Guardianship Act read with Section 25 of the Guardians and Wards Act read with Section 7(g) of the Family Courts Act before the Family Court at Pune and the same came to be registered as D-25 of 2007. He prayed for the custody of his daughter Manasi and to be handed over to him on the ground that he is the natural guardian. 5. The Family Court had issued notices to the present appellant – original respondent but as per the Family Court she remained absent throughout despite service and, therefore, the petition was directed to proceed ex parte. The present 3 respondent filed his affidavit at Exhibit 19 by way of his evidence and also filed certain documents at Exhibit 37. While the said petition was pending he performed his second marriage on 23/5/2008. The Family Court noted that the father has the source of income and the grandmother was old and her source of income was not coming on record and, therefore, the custody of the petitioner’s daughter was granted to him. 6. Mr.Pawar, the learned counsel for the appellant submitted that she has been working for a Bank as well as Post Office for the last about 20 years or so. She had not received the Court’s summons and, therefore, she could not appear and contest the custody petition. He further submitted that the respondent has already remarried on 23/5/2008 and it would not be in the interest of Manasi that she is kept in the custody of her father which would ultimately mean that she would be in the custody of stepmother. It does not appear from the impugned order that Manasi was interviewed by the Family Court so as to assess her desire and even when the impugned order was passed, Manasi was around four years of age. 7. Be that as it may, as the appellant remained absent 4 before the Family Court or she did not receive the notice and consequently the petition for custody proceeded ex parte, it would be in the interest of both the parties that the petition filed by the respondent is restored to the file of the Family Court and decided afresh by giving an opportunity to the present appellant to file her additional Written Statement as well as adduce evidence about her financial capability. She may examine witnesses and also cross-examine the witnesses, if any, of the petitioner. Needless to mention, the Family Court will also interview Manasi so as to assess her welfare which is the paramount consideration while deciding the custody petitions. 8. Hence the appeal is allowed and the impugned order dated 12/9/2008 is hereby quashed and set aside. Petition No.D-25 of 2007 stands restored to the file of the Family Court at Pune and we direct that the same shall be heard and decided afresh after providing an opportunity to the present appellant to adduce evidence and cross-examine the witnesses of the original petitioner. The parties shall appear before the Family Court on 27th July 2009 at 11 a.m. and the present appellant shall submit the list of witnesses as well as additional WS if any. On remand Petition No.D-25 of 2007 be heard and decided as 5 expeditiously as possible and preferably before 31st October 2009. The parties have undertaken before us that they will not seek unwanted adjournments before the Family Court and extend their assistance to ensure that the petition is decided within the stipulated time. Parties to bear their own costs. 9. Writ to go to the Family Court forthwith. (S.J.VAZIFDAR,J.) (B.H.MARLAPALLE,J.)