1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. FIRST APPEAL NO.914 OF 2010 Smt.Kalabai Mangal Kasbe ... Appellant. Versus Mangal S/o Chindha Kasbe ... Respondent. ... Mr.S.S.Deshmukh, advocate for the appellant. Mr.Girish Rane, advocate for the Respondent. ... CORAM : S.V.GANGAPURWALA,J. Date : 06.09.2010. PER COURT 1. The present appellant assails the order passed by the Adhoc Additional District Judge, Amalner, dated 17.6.2006 passed below Exh.1 in Misc.Civil Application No.7/2005. 2 2. The present Respondent had instituted proceedings for custody of the minor child Dipak. The present appellant is the wife of Respondent and their marriage took place almost 20 years back. On 4.12.1997, from the said wedlock, son namely, Dipak was born to them. The appellant and Respondent are residing separate due to the disputes between them. Dipak is residing with the appellant. The present Respondent had initiated the proceedings for custody of the said minor child. The present appellant was served with the notice and had appeared through the advocate. The advocate sought many chances. Thereafter, the present appellant did not participate in the proceedings and vide the impugned judgment dated 17.6.2006, the Court allowed the application filed by the Respondent and directed the appellant to handover the custody of the minor Dipak to the present Respondent. 3. The appellant filed an objection in the execution proceedings filed by the present Respondent for execution of the said order. 3 Thereafter, the present appeal has been filed by the appellant. This Court has condoned the delay in filing the appeal. 4. Mr.Deshmukh, learned counsel for the appellant contended that the impugned judgment and order is an exparte one. Though the appellant was served with summons and engaged advocate, the learned advocate did not prosecute the matter. He took time to file say and even declined to cross-examine the present Respondent. In such circumstances, the impugned order has been passed. According to him, the appellant is taking proper care of the minor and he is school going. The appellant is a rustic person residing in a rural village and is not aware of the intricacies of the judicial proceedings and as such prays for remanding the matter back to the District Court, Amalner, for deciding the proceeding afresh. 5. Per contra, Mr.Rane, learned counsel for Respondent vehemently opposes the submissions made by the learned counsel for the appellant and 4 by referring to the specific dates has canvassed that ample opportunity was given to the appellant. The appellant has not availed the said opportunities. According to him, it was the deliberate act on the part of the appellant to thwart the proceedings. She was aware that the delay caused would be beneficial to her. He submitted that as many as four dates were given to the appellant to file say but she did not avail the said opportunity. In such circumstances, no error can be found in the judgment of the Court below. Mr.Rane, learned counsel further submits that only intention of the appellant is to delay and get the maintenance amount for the son from the present Respondent. 6. I have considered the rival contentions of the parties. No doubt, ample opportunity was given to the appellant to contest the matter but the same was not contested. The learned counsel appearing for the appellant did not file say and even declined to cross-examine the Respondent. The matter revolves around the son. The rights of the parties in such matters should be decided 5 on merits. In view of that even though there is laxity on the part of the appellant, I am inclined to remand the matter back to the District Court, Amalner to decide the proceedings afresh. The parties shall cooperate with the proceedings and shall not seek unnecessary adjournments. 7. In the result, I pass the following order : The impugned order dated 17.6.2006, passed by the Adhoc Additional District Judge,Amalner, in Misc.Civil Application No.11/2005 is quashed and set aside. The matter is remanded back to the said Court for deciding it afresh. The parties shall appear before the said Court on 27.9.2010. The present appellant shall file her say on or before 11.10.2010 and the Court below shall decide the proceedings on or before 28.2.2011. The appellant shall pay costs of Rs.2,000/- (Rupees two thousand) to the Respondent. The First Appeal is disposed of accordingly. 6 8. Needless to state that I have not expressed any opinion on merits of the matter. (S.V.GANGAPURWALA,J.) asp/office/fa914.10