-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO.299 OF 2007 IN FAMILY COURT APPEAL NO.192 OF 2007 Deepti Nandlal .. Applicant. Vs. Rishi Nandlal .. Respondent. Mr.M.M.Vashi for the applicant. Mr.Indu Prakash i/b Mr.L.K.Tripathi for the respondent. CORAM : B.H.MARLAPALLE & D.B.BHOSALE,JJ. CORAM : B.H.MARLAPALLE & D.B.BHOSALE,JJ. CORAM : B.H.MARLAPALLE & D.B.BHOSALE,JJ. DATED : 10TH SEPTEMBER, 2008. DATED : 10TH SEPTEMBER, 2008. DATED : 10TH SEPTEMBER, 2008. P.C. : P.C. : P.C. : . We have heard the learned counsel for the respective spouses and we have been informed that the parties could not arrive at a compromise so as to obtain divorce by mutual consent. 2. Mr.Vashi, the learned counsel for the applicant states that the wife has filed a divorce petition before the Family Court at Mumbai which is registered as Petition No.A-2125 of 2007, sometime in October, 2007. This petition is filed before the Family Court on the basis that the marriage between the parties was solemnised as per Hindu Vedic rites at Mumbai on 19.4.2003 and the petitioner-wife continues to be an Indian citizen and domiciled in Mumbai. Mr.Vashi, the learned counsel for the applicant has relied upon the -2- Division Bench decision of this Court in Family Court Appeal No.11 of 2005 (Mrs.Sondur Rajini Vs. Mr.Sondur Gopal) rendered on 11.4.2005, in support of his contentions that though the respondent-husband is a citizen of South Africa, the petition filed by the wife before the Family Court seeking divorce is maintainable. 3. This application prays for interim relief in terms of the custody of minor son by name - Kush. An ad-interim order of injunction was granted on 30.10.2007 in this application and as a result thereof the minor son is presently in the custody of his mother. 4. There is no dispute that under section 26 of the Hindu Marriage Act, 1955, the wife has a right to apply in her pending petition before the Family Court, seeking custody of the minor child or retaining her custody, during the pendency of the said petition for divorce. 5. We, therefore, do not find it appropriate to keep this application pending though Family Court Appeal No.192 of 2007 filed by the applicant-wife has already been admitted for deciding the issue of Family Court’s jurisdiction to entertain a petition filed -3- under section 9 of the Guardians and Wards Act, 1890. 6. Hence the application is disposed off with a further direction that ad-interim relief granted on 30.10.2007 shall continue to operate for a further period of six weeks. In this period of six weeks if the respondent-husband visits India, certainly he has to be given access to meet and to be with his son subject to the condition that he surrenders his passport with the Family Court which is dealing with the wife’s petition for divorce. The terms and conditions of access would be decided by the Family Court. (D.B.BHOSALE,J.) (B.H.MARLAPALLE,J.) (D.B.BHOSALE,J.) (B.H.MARLAPALLE,J.) (D.B.BHOSALE,J.) (B.H.MARLAPALLE,J.)