Sau. Priti Guruprasad Kulkarni v. Shri. Guruprasad Pramod Kulkarni
VPH
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION FAMILY COURT APPEAL No. 112 OF 2016 WITH CIVIL APPLICATION No. 165 OF 2016 Sau. Priti Guruprasad Kulkarni ...
Appellant Vs.
Guruprasad Pramod Kulkarni ...
Respondent *** Mr. Sudhir S. Hardikar, for the Appellant.
None for the Respondents.
*** CORAM : V. M. KANADE, & Mrs. SWAPNA S. JOSHI, JJ.
DATE : SEPTEMBER 19, 2016 PC.
1.
Heard the learned counsel appearing on behalf of the Appellant. The Appellant-wife is aggrieved by an order passed below Exhibit 42 in Petition A No. 277/2013, on 26th February, 2016 on an application filed by the Appellant-wife.
2.
The brief facts are that the Respondent has filed the petition under Section 9 of the Hindu Marriage Act, 1955 for 1 / 3
restitution of conjugal rights. The said petition was decided exparte on 24.7.2012, since neither the Appellant nor the Respondent remained present. The Respondent, therefore challenged the said decision by filing the appeal before the District Judge, Kolhapur. This appeal was decided and the matter was remanded back to the Family Court. In the meantime, the Respondent-husband also filed a petition for divorce on the ground of desertion and cruelty. The learned Family Court, however, rejected the application filed for dismissal of the petition for restitution of conjugal rights. 3.
The learned counsel appearing for the Appellant submitted that the petition for restitution of conjugal rights and the petition for divorce was not maintainable, and therefore, the petition for restoration of the petition under Section 9 of the Hindu Marriage Act, 1955 is liable to be dismissed.
4.
It is not possible to accept this submission. It is to be noted that the Respondent-husband had filed an application for recalling an exparte dismissal of his petition filed under Section 9 of the Act. The said application was allowed and the matter was remanded back to the family court. The Respondent - husband also 2 / 3
filed a petition for divorce on the ground of cruelty and desertion. 5.
In our view, Family Court was justified in not dismissing the petition filed under Section 9 of the Act. The District Court has observed that the petition under Section 9 of the Act was not decided on merits., and therefore, it was remanded back to the Trial Court. It is always open for the Respondent - husband to file an appropriate application in both these matters. At this stage, for the purpose of withdrawing one of them, we do not see any reason to interfere with the order passed by the learned District Judge dated 26th February, 2016. All contentions of the Appellant are kept open. Reserving the right of Appellant to make an appropriate application, appeal is disposed of.
6.
In view of disposal of the appeal, Civil Application No. 165 of 2016 filed therein does not survive, and is accordingly disposed of.
Sd/- Sd/- [Mrs. SWAPNA S. JOSHI, J.] [V. M. KANADE, J.] Vinayak Halemath 3 / 3