1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE NAGPUR BENCH, NAGPUR WRIT PETITION NO. 2191 /2008 (Sanjay Shrirajmi Pendharkar Vs. Smt. Meena Bhaiyyaji Lande) Appeal District : Application No. of 200 Writ petition Office Notes, Office Memoranda of Coram, appearances, Court's orders or directions Court's or Judge's orders and Registrar's orders. Mr. N.G. Jetha, Adv. for the petitioner. Mr. N.M. Jibhkate, Adv. for the respondent. CORAM : Smt. Vasanti A. Naik, J. DATED : 18 th OCTOBER, 2008. By this petition, the petitioner impugns the order passed by the Judge, Family Court, Nagpur, on 20/2/2008, dismissing the application filed by the petitioner in Petition No. D-24/05 filed by the respondent under Section 25 of the Guardians and Wards Act, read with Sections 6 and 13 of the Hindu Minority and Guardianship Act, for the custody of her son. According to the petitioner, the respondent had filed a petition under Section 25 of the Guardians and Wards Act before the 4th Additional District Judge, Nagpur, which was registered as Petition No. 322/2004. It is the case of the petitioner that the respondent had withdrawn the petition filed by her before the 4th Additional District Judge, Nagpur, by an application dated 2 27/6/2005. It is further stated on behalf of the petitioner that the 4th Additional District Judge, Nagpur, had permitted the respondent to withdraw the petition by allowing the application for permission to withdraw the petition by the order dated 27/6/2005. It is the case of the petitioner that in pursuance of the order allowing the application for grant of permission to withdraw the petition, by a subsequent order passed on the same day, the 4th Additional District Judge, Nagpur, held that the petition stood dismissed as withdrawn in view of the order passed below Exh. 16. Exh. 16 was the application for grant of permission to withdraw the petition. According to the petitioner, the respondent ought to have mentioned the fact about the dismissal of the earlier petition by the 4th Additional District Judge, Nagpur, in the petition filed by her under the provisions of Section 25 of the Guardians and Wards Act, before the Family Court at Nagpur. Since this fact was not mentioned in the Petition No. D-24 of 2005, the petitioner had applied for dismissal of the petition filed by the respondent before the Family Court. Since the Family Court had dismissed the application filed by the petitioner for dismissal of Petition No. D-24 of 2005, the present petition is preferred. I have heard the learned counsel for the 3 parties and also have perused the application filed by the respondent before the 4th Additional District Judge, Nagpur, for permission to withdraw Petition No. 322/2004. I have perused the application filed by the petitioner for dismissal of Petition No. D-24 of 2005 and the impugned order dated 20/2/2008. No fault can be found with the order passed by the Family Court at Nagpur, on 20/2/2008. The Family Court rightly considered the fact that the petitioner was also a party to the earlier petition and since he was aware of the fact of filing of the earlier petition, she had not mentioned the same in Petition No. D- 24 of 2005. Though the respondent had withdrawn Petition No. 322/2004 filed before the District Judge, Nagpur, it is necessary to note the contents of the application for permission to withdraw the petition. It was categorically stated in the application that the respondent may be permitted to withdraw the petition with liberty to file a fresh petition before the Family Court. Though the liberty was not specifically sought by the prayer clause, it was clearly mentioned in the application that the respondent was desirous of withdrawing the petition since another petition pertaining to the custody of the daughter was already pending before the Family Court and the respondent wanted to file, if need be, an objection for custody of son before the Family 4 Court. In this background, the respondent had stated that the respondent may be permitted to withdraw the petition with liberty to file an objection before the Family Court. The order passed on the application reads, “Allowed”. Subsequently, on the same day, the 4th Additional District Judge, Nagpur, passed the following order, “In view of the order passed below exh.16, this petition stands dismissed as withdrawn” A reading of the application filed by the respondent before the 4th Additional District Judge, Nagpur, makes it clear that she was desirous of withdrawing the petition in view of the fact that another petition filed by the present petitioner for custody of his child was already pending in the Family Court at Nagpur and she wanted to file a petition for the custody of the son, if need be, in the Family Court at Nagpur. Since the 4th Additional District Judge, Nagpur, had allowed the application dated 27/6/2005, it is clear that the respondent was granted permission to withdraw the petition with liberty to file another petition, if need arose. The contents of the application to withdraw the petition clearly show that the permission to withdraw the petition with liberty to file another petition before the Family Court was sought in the said application. Consequential order passed on 27/6/2005 mentions 5 about the dismissal of the petition as withdrawn in pursuance of the order allowing the application filed by the respondent for grant of permission to withdraw the petition. In this background, it cannot be said that the impugned order passed by the Judge, Family Court at Nagpur, on 20/2/2008, suffers from error whatsoever, much less, a jurisdictional error so as to interfere with the same in exercise of the jurisdiction under Article 227 of the Constitution of India. The writ petition is dismissed with no order as to costs. JUDGE RMP