Bombay High Court
Sonali Rahul Wani vs Rahul Rajan Wani on 26 August, 2021
Bench: Makarand Subhash Karnik
37.wp.2027-18.doc
PMB
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.2027 OF 2018
Sonali Rahul Wani .. Petitioner
vs.
Rahul Rajan Wani .. Respondent
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Smt. Prabha U. Badadare for the Petitioner.
Mr. Mohammd Umar Kazi for the Respondent.
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CORAM : M.S.KARNIK, J.
DATE : AUGUST 26, 2021
P.C.
Heard learned counsel for the parties.
2. The order under challenge in this Petition under Article 227 of
the Constitution of India is passed by the District Judge rejecting
the application made by the Petitioner-wife under Order IX Rule 13
of the Civil Procedure Code, 1908 ('CPC' for short) for setting aside
the ex-parte judgment and order dated 03.11.2017 passed by the
District Judge in Civil Miscellaneous Application No.161 of 2017.
3. The Civil Miscellaneous Application No.161 of 2017 was fled
by the Respondent-husband for custody of the minor child 'Sulekh'
now aged 12 years. The custody of the son is with the Petitioner-
mother.
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37.wp.2027-18.doc
4. Despite the service of summons, the Petitioner did not
remain present to contest the Civil Miscellaneous Application
No.161 of 2017. The ex-parte judgment and order therefore came
to be passed against the Petitioner and she was directed to hand
over the custody of child 'Sulekh' forthwith to the Respondent-
husband. The application made by the Petitioner under Order IX
Rule 13 of the CPC was rejected by the judgment and order dated
02.02.2018. Learned counsel for the Petitioner submitted that she
had to look after the son. There was some misconception on her
part in attending the Court which was unintentional, resulting in
the default. She tenders an unconditional apology through her
counsel.
5. Learned counsel for the Respondent opposed the Petition.
According to him, the Petitioner has been negligent and despite
service of notice, the Petitioner failed to remain present. He invited
my attention to the fndings recorded by the District Judge to
contend that the orders passed by the District Judge cannot be said
to be perverse.
6. I do fnd some substance in the contention of learned counsel
for the Respondent, in that the Petitioner has failed to attend the
proceedings before the District Judge. However, it cannot be
forgotten that ultimately it is the question of the custody of minor
child whose welfare is a paramount consideration. The custody
was all along with the mother. Learned counsel on instructions of
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the Petitioner tendered her apology and requests that she may be
given an opportunity to contest the application before the District
Judge.
7. In my opinion, having regard to the facts and circumstances
of the present case, considering the interest of minor child is
paramount, it is necessary to give an opportunity to the Petitioner
to contest the application as what has been directed is handing
over custody of the minor to the father by an ex-parte order.
No doubt the Petitioner failed to remain present which she regrets.
In the interest of justice, the impugned order deserves to be
quashed and set aside. The application made under Order IX Rule
13 of the CPC is allowed. The Civil Miscellaneous Application
No.161 of 2017 is restored to fle to be heard on its own merits.
The District Judge is requested to hear and decide the Civil
Miscellaneous Application No.161 of 2017 as expeditiously as
possible and preferably within a period of six months from
02.09.2021 when the parties undertake to appear before the
District Judge.
8. The Application is allowed subject to the cost of Rs.1,000/-
payable to the Maharashtra Legal Aid Services Authority.
9. The Writ Petition is disposed of.
Digitally
(M.S.KARNIK, J.)
signed by
PRADNYA
PRADNYA MAKARAND
MAKARAND BHOGALE
BHOGALE Date:
2021.08.26
20:21:48
+0530
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