JUDGMENT :- Heard Mr. Sudin Usgaonkar, learned counsel appearing for the petitioner and Mr. S.D. Lotlikar, learned Senior Counsel appearing for the respondent.

2. Rule. Heard forthwith with the consent of the learned counsel and at their request to hear finally.

3. Mr. Noel Dias Sapeco, learned counsel for the respondent waives service.

4. The above Writ Petition inter-alia seeks to quash and set aside an order passed by the learned Civil Judge 'Senior Division, Margao, dated 31.01.2014 in Matrimonial Petition No. 59/2013 whereby an application for interim custody filed by the respondent came to be allowed and the respondent who is the mother was given interim custody of the male child with visitation rights to the petitioner herein.

5. Before I proceed to examine the rival contentions, the brief facts of the case relevant for the purpose of deciding the above Writ Petition are that the petitioner and the respondent were married in U.S.A. and out of their wedlock a child was born on 18.04.2012 in U.S.A. The petitioner and the respondent thereafter returned to India and were residing in Mumbai in the company of the mother of the petitioner. The record further reveals that there were differences between the petitioner and the respondent concerning marriage and ultimately the petition came to be filed before the learned Civil Judge Senior Division, Margao, under Section 6 of the Hindu Minority and Guardianship Act, 1956 for guardianship and custody of the minor child. It was the case of the petitioner therein that the child was in the custody of the petitioner from the time he had come to India and according to him in view of some difference between the respondent and his mother he had come to live to Betalbatim, Salcete Goa. It is further his case that in January, 2013, the respondent proceed to U.S.A. and the child was left with the petitioner. The record further reveals that the respondent thereafter returned back to India somewhere at the end of March, 2013 and lived for sometime in the house at Betalbatim. It is further his case that thereafter the respondent left from Mumbai for U.S.A. in April, 2013 and returned to India in June, 2013 and thereafter, she initiated proceedings under the Domestic Violence Act, in the Court at Mapusa. The respondent was served with summons in the proceedings and a written statement was filed by the respondent. In the said proceedings before the learned Trial Court, an application for interim relief was filed by the petitioner inter-alia restraining the respondent from forcibly taking the custody of the child from the petitioner. In the meanwhile, the respondent filed an application in October, 2013 in the said suit for interim custody of the minor baby boy. The record further reveals that by an order dated 20.11.2013, the learned Judge granted the relief inter-alia restraining the respondent from forcibly taking the child from the custody of the petitioner. The application for interim custody was opposed by the petitioner and by the impugned order dated 31.01.2014, the interim custody was ordered to be given to the respondent herein. Being aggrieved by the said order, the petitioner has preferred the present petition.

6. Mr. Sudin Usgaonkar, learned counsel appearing for the petitioner has pointed out that once the learned Judge has taken a view that the custody of the minor child could not be taken forcibly from the petitioner the question of examining the interim custody on the application filed by the respondent is an erroneous exercise of jurisdiction carried out by the learned Judge. The learned counsel has further pointed out that as from January, 2013, the minor child is in the custody of the petitioner. The learned counsel further pointed out that the respondent had proceeded to U.S.A. in January, 2013 in connection with her job and as from the said date, apart for a short period in the month of April, 2013, when she had returned to India, the minor child was always in the custody of the p

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