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Prasad S/O Dinkar Toal vs Mrs. Anagha D/O Vinayak Joshi And … on 9 September, 2019

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR

WRIT PETITION NO. 4511/2019

Prasad D. Toal
..VS..
Anagha V. Joshi anr.
———————————————————————————————-
Office Notes, Office Memoranda of Coram, Court’s or Judge’s orders
appearances, Court’s orders of directions
and Registrar’s orders
———————————————————————————————-
Shri R.R. Deshpande, Advocate for the petitioner
Ms. M.P. Kshirsagar, Advocate for the respondent no. 1

CORAM : Z.A.HAQ, J.

DATED : 09/09/2019

Heard.

In the joint petition filed by the petitioner and
respondent no. 1 under Section 13B of the Hindu Marriage
Act, 1955 for divorce by mutual consent, the parties had
agreed for disposal of the petition as per the consent terms
dated 14/09/2015. The term [C] of the consent terms is that
permanent custody of the minor son Pranad will be with the
present petitioner (father of Pranad) after Diwali, 2015.
Accordingly, custody of Pranad was handed over to the
petitioner after Diwali, 2015.

In March 2018, the respondent no. 1 filed an
application under Sections 7, Section8, Section10 and Section12 of the Guardians
and SectionWards Act, 1890 (for short “the Act of 1890”) seeking
custody of Pranad on the ground that the petitioner has re-
married and step mother of Pranad is not taking proper care
of Pranad. In these proceedings, the respondent no. 1 had
filed an application praying for interim custody of Pranad. By
the impugned order, the Family Court directed the petitioner
to handover custody of Pranad to the respondent no. 1
temporarily after his exams were over. The Family Court

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directed the respondent no. 1 to return the child to the
petitioner one day before the school was to re-open. This
order is challenged by the petitioner by filing petition on
27/06/2019.

According to the petitioner, the respondent no. 1
has not handed over custody of Pranad inspite of the
directions given by the Family Court to her to handover
custody of Pranad to the petitioner one day before re-opening
of the school. The main thrust of the argument on behalf of
the petitioner is that the application filed by the respondent
no. 1 under Sections 7, Section8, Section10 and Section12 of the Act of 1890 is not
maintainable.

It is not in dispute that the petitioner has re-
married. The respondent no. 1 is serving as physical instructor
in a reputed school at Nagpur on honorarium. It is on record
that parents of the respondent no. 1 are residing with her.

The petitioner disputes the claim of the
respondent no. 1 that her parents are residing with her.

Be that as it may, in the facts of the case, at this
stage, I am not inclined to consider the technical objection
raised on behalf of the petitioner about maintainability of the
application under Sections 7, Section8, Section10 and Section12 of the Act of 1890.
The petitioner is at liberty to agitate the same before the
Family Court. The petitioner will be at liberty to file
application before the Family Court for seeking custody of
Pranad.

With the above observations, the petition is
disposed. In the circumstances, the parties to bear their own
costs.

JUDGE
Ansari

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