Smt. Trupti Himanshu Kumar v. Mr. Himanshu Kumar

904-wp-38-2016.doc

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION WRIT PETITION NO.38 OF 2016 Trupti Himanshu Kumar

...Petitioner

vs.

Himanshu Kumar

...Respondent

Mr. Hafeez Patanwala i/b. Mr. Abhay Nevagi & Associates, for the Petitioner.

Mrs. Seema Sarnaik a/w. Mr. A.S. Tamhane, Mrs. Sangita Salvi, for the Respondent.

CORAM : M. S. SONAK, J.

DATE :

DECEMBER 13, 2018 P.C.:

.

Mr. Hafeez, learned counsel for the Petitioner states that he has already returned the papers and reports no further instructions.

2.

Mrs. Sarnaik, learned counsel for the Respondent points out by the impugned order dated 4th November, 2017 the contention raised by the Petitioner as regards the merits or demerits of the Respondent's counter claim have not been finally decided. She submits that the impugned order is absolutely right because the counter claim could not have been dismissed without parties leading evidence and such evidence considered by the Family Court.

Vishal Parekar 1/2

904-wp-38-2016.doc 3.

From the perusal of the impugned order, it appears that it was the case of the Petitioner that the counter claim filed by the Respondent ought to have been dismissed because the Respondent during the pendency of the proceeding allegedly married second time. The Respondent has not admitted the factum of any second marriage. In the aforesaid circumstances, the Family Court was quite right in holding that the counter claim cannot be dismissed at this stage and such issue will have to be considered after the parties lead their respective evidence in the matter. This means that the contentions raised by the Petitioner have not been rejected as such. Only consideration of such contentions has been postponed till the parties lead evidence on all the issues. There is really no jurisdictional error in the impugned order so as to warrant interference.

4.

Therefore by clarifying that the contentions of the Petitioner have been kept open, this Petition is dismissed. 5.

There shall be no order as to costs.

6.

The interim order if any is therefore vacated. (M. S. SONAK, J.) Vishal Parekar 2/2