1 WP.33371.10.sxw mnm IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE CIVIL JURISDICTION WRIT PETITION (ST). NO.33371 OF 2010 Vijay Venkateswara Rao Davuluri ...Petitioner Vs. Shalini Vijay Dauluri ...Respondent Mr. Arjun H. Patil, Advocate for the Petitioner Mr. Niranjan Shimpi, Advocate for the Respondent (V.P. Not filed) CORAM : SMT. ROSHAN DALVI, J. DATED : 9TH FEBRUARY, 2011 P.C. : 1. The Petitioner husband has filed this Petition challenging two orders of the Family Court. One order is upon his application for custody of the child filed on 20th December 2010, which the Family Court, Mumbai made returnable on 6th January 2011 and the other order of the Family Court, Mumbai on the application to take the aforesaid application on board on the date he made the application, which is 22nd December 2010, which the learned Family Court Judge refused. She affirmed the date as on 6th January 2011. 2. It is seen that the Petitioner applied for the relief of custody of child upon utmost urgency. He required the Family Court to 2 WP.33371.10.sxw decide that interim application either on the date it was filed or two days thereafter. The Family Court has rejected such a plea. He has filed this Writ Petition challenging such rejection. The urgency of Writ Petition is required to be matched by similar urgency and expediency of the Petitioner in replying to the Petition and the application made by his wife prior to his own application for custody of the child. To appreciate that, certain chronology of events and dates must be required to be seen. 1. The parties married here in India and lived in the USA. 2. The wife had returned to India with child. 3. The child was born on 29th December 2005. She is now 5 years. 4. She is stated to have suffered a Congenital defect. 5. The husband claims that she requires regular medical checkups in the USA where she was treated. 6. The wife claims that she is now in normal state of health. 7. The husband came to India on 13th August 2010. He claims to have telephoned his wife to give him access to the child. That could not be obtained. 8. He left for Hyderabad from Mumbai on 14th August 2010. 9. On 16th August 2010 the wife filed her Petition for divorce and maintenance. 10.On 19th August 2010 the husband wanted to have access 3 WP.33371.10.sxw to the child, went to the residence of his wife and found it locked. 11.On 20th August 2010 he went to the school of the child and found that she had been absent for some time. He lived in a hotel. 12.He was served the copy of the Petition and the notice of the application on 21st August 2010 at the hotel. 13.He executed a power of attorney in favour of his father and left India on 23rd August 2010. 14.At the first hearing of the Petition on 27th August 2010 his father sought to appear on his behalf and appoint an Advocate under his Vakalatnama. 15.The learned Family Court Judge directed that at least for the first date of hearing the husband must attend the Court. 16.The husband failed to appear and the husband’s father was not allowed to represent him. Hence the wife’s Petition for divorce and maintenance remained at that. When these state of affairs continued, the husband came to India, not to reply to his wife’s Petition for divorce or her application for maintenance, but to take out another application for custody of his child. 17.He came to India on 28th December 2010. He filed his application on 28th December 2010. The Judge made it returnable on 6th January 2011. He considers that erroneous. Hence he applied on 22nd December 2010 to 4 WP.33371.10.sxw take it up on that very date. The Judge refused and hence this writ petition. His application was not to defend the application of the wife for maintenance, but to consider his application for custody of the child. 3. The Petitioner has high expectations. He does not seem to have any other point of view. The Family Court is packed to capacity with work. Application of the wife was earlier filed. That application remained at that. The husband desired the Court to consider his application alone and on most urgent basis on the day he filed it and on the day he directed the Court to hear it. 4. Given the arrears under which the Court’s function and the number of applications which are filed before the Court, the husband’s expectations are rather ambitious. He cannot be granted the reliefs sought in the time desired and at his will. He has to first submit to the authority of Court. He has to file his reply to the Petition which was filed first. He has to consider the other side’s application with the same expediency that he expects the Court to consider his. The husband has done none of these. All that he has desired to have access to his child. 5. His Advocate claims that he sent a cheque of Rs.1 lakh to the wife, which has been refused. The husband has computed the 5 WP.33371.10.sxw amount of maintenance payable which he deems fit. The wife is not expected to accept ‘a bone thrown to a dog’. She is entitled to have her maintenance amount decided by the Court. It is for the Court to decide the maintenance amount and not the husband. Of course that would be decided in accordance with law and the procedure established by law. The husband must first reply to that application and the Petition. 6. It is contended that because the child has to be medically examined the child must be flown to the U.S first and that is of utmost urgency and hence the husband has challenged the returnable date given by the Family Court and the refusal to take up the application on the date he deemed fit and directed the Family Court to do so. 7. Aside from the mere word of the husband making out the urgency there is no such urgency made out by medical records or any such documentary evidence. The wife claims that the child is normal. These disputed questions of fact would require to be decided by the Family Court. That can be done only when the main application already filed prior to the husband’s application for custody is decided. 8. The only equitable order that can be passed or expected by the husband is to have a date fixed for determination of the 6 WP.33371.10.sxw application for interim maintenance filed by the wife and the application for interim access filed by the husband together on merits. 9. When this aspect was pointed out to the Advocate for the husband, he contends that the husband challenges the territorial jurisdiction of the Family Court. This is on the ground that the husband was not present in Mumbai when the Petition was filed and he was at Hyderabad. Section 19 of the Hindu Marriage Act does not require a petition to be filed where the husband at that time was. This question of law would have to be decided. 10.This Court asked the husband’s Advocate whether he desired to have the territorial jurisdiction of the Court decided first before the wife’s application for interim maintenance could be considered along with his application for access or whether he proposed to submit to the jurisdiction of the Court and have both the issues decided on merits on one given date together. The husband has opted to challenge the territorial jurisdiction of the Court. That would have to take its own course. The application would be considered in accordance with the procedure established by law for the Family Court. The husband shall have to abide the directions of the Family Court in that behalf. The husband would not be entitled to make any interim application pending the determination of the territorial 7 WP.33371.10.sxw jurisdiction of that Court, because that application also would be in the Court having no territorial jurisdiction, if the husband’s contention is correct. 11.Given all these facts it is seen that the Writ Petition is completely misconceived. The returnable date given by the Family Court has long since expired. The order not to take up a petition of any litigant upon the dictates of the litigant is correct because it is the complete priority of the Court to decide its dates of hearing upon its own case management. 12.Writ Petition lacks bona fides and is, therefore, dismissed. (SMT. ROSHAN DALVI, J.)