C/FA/2490/2022 ORDER DATED: 09/02/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2490 of 2022
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JAYDIPBHAI DALSUKHBHAI MUNJAPARA
Versus
PRANALI DIPAKBHAI LASHKARI
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Appearance:
BHAVIN B THAKAR(9371) for the Appellant(s) No. 1
MR. KULDEEP D VAIDYA(7045) for the Defendant(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE A.J.DESAI
and
HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN
Date : 09/02/2023
ORAL ORDER
(PER : HONOURABLE MR. JUSTICE A.J.DESAI)
1. The present First Appeal has been filed by the Appellant Husband - Original Respondent under Section 19 of the Family Court Act (for short "the Act") read with Section 96 of the Code of Civil Procedure (for short "the Code") challenging the judgment and order dated 5.2.2022 passed by the learned Principal Judge, Family Court, Bhavnagar below Application Exh.60 in Family Suit No. 180 of 2019 (hereinafter referred to as "the Family Suit"), by which the Application Exh.60 by which the Respondent Wife has sought permission to withdraw Family Suit filed by her for a decree of divorce was accepted and she was permitted to withdraw the Suit with a liberty to file another petition under Section 13 of the Hindu Marriage Act 1955.
2. It is the case of the Appellant that at the fag end of hearing of the Family Suit, the Family Court has permitted to file a fresh petition. He would submit that all the documentary evidences as well as depositions were recorded by the Page 1 of 3 Downloaded on : Fri Feb 10 20:48:25 IST 2023 C/FA/2490/2022 ORDER DATED: 09/02/2023 Family Court and it may come in the way in the subsequent proceedings which shall be filed by the Respondent Wife for decree of divorce under Section 13 of the Act.
3. On the other hand, learned Advocate Mr. Kuldeep D. Vaidya for the Respondent Wife - Original Appellant would submit that subsequent to the order of withdrawal, the present Respondent Wife has already filed an Application under Section 13 being Hindu Marriage Petition No. 33 of 2022 in the Court of Family Court at Bhavnagar. He would submit that the same is at the stage of hearing. He would submit that the Family Court has committed no error in accepting the Application Exh.60 submitted by the Respondent Wife, permitting her to withdraw the same considering the technical ground which may come in the way of the Original Petitioner - Wife seeking decree of divorce. He therefore submitted that the Appeal be dismissed.
4. We have heard learned Advocates appearing for the respective parties, perused the order passed below Application Exh.60 impugned in this Appeal.
5. Having considered the fact that after entering into the marriage with the present Appellant Husband, the Respondent Wife, withing no time had left the matrimonial home and wanted divorce and therefore the Family Suit under Section 13 of the Act was filed, which came to be withdrawn with liberty to file a fresh. Hence, we do not find any reason to interfere with the order. The Appeal is dismissed. However, the Family Court which is now dealing with the Hindu Marriage Petition No. 33 of 2022 shall not rely upon the depositions recorded in Family Suit No. 180 of 2019 which is already disposed of, if it is produced on record by any of the parties.
6. It is needless to say that the Family Court shall decide the proceedings i.e. Family Suit No. 33 of 2022 on its own merits without being influenced by Page 2 of 3 Downloaded on : Fri Feb 10 20:48:25 IST 2023 C/FA/2490/2022 ORDER DATED: 09/02/2023 the present order passed by this Court. The Suit is hereby directed to be expedited by the Family Court.
(A.J.DESAI, J) (RAJENDRA M. SAREEN,J) J.N.W / 36 Page 3 of 3 Downloaded on : Fri Feb 10 20:48:25 IST 2023