Kalpana Bharat Patil vs Bharat Onkar Patil
2007 Latest Caselaw 219 Bom

JUDGMENT

B.R. Gavai, J.

1. Rule made returnable forthwith. Heard by consent.

By way of present petition, the petitioner challenges the order dated 7th October, 2006 passed by the learned Civil Judge (Senior Division), Shahada, below Exhibit 26 in Hindu Marriage Petition No. 7/2006, thereby rejecting the application of the present petitioner for stay of the said proceedings under Section 10 of the Code of Civil Procedure, 1908.

2. The petitioner/wife filed a petition for divorce on the ground of desertion and cruelty, being Hindu Marriage Petition No. 52/2005. Thereafter, the respondent/husband has filed a petition for restitution of conjugal rights on the ground of desertion. An application came to be filed by the petitioner/wife on the ground that the petition filed by the husband/wife was subsequent to that of the petitioner/wife and that since the lis was between the same parties and the issue involved in the matter was substantially the same, it was necessary that the subsequent proceedings be stayed. However, the learned trial Court rejected the said application on the ground that the issue involved in the matter is substantially not the same in both the petitions. Hence, the present petition.

3. Mr. A.R. Kale, learned Counsel appearing on behalf of the petitioner, submits that the learned Trial Court has erred in rejecting the application, inasmuch as the lis between the parties is the same and the matter is substantially same.

4. Mr. J.R. Shah, learned Counsel appearing on behalf of the respondent/husband, submits that the Trial Court is proceeding with the petition filed by the petitioner and the petition filed by the husband is being adjourned from day-to-day.

5. From the record, it can be seen that the parties to both the proceedings are same i.e. husband and wife. One petition is filed by the petitioner/wife for divorce on the ground of cruelty and desertion, whereas another petition is filed by the respondent/husband for restitution of conjugal rights on the ground of desertion. It could thus be seen that the evidence that would be led by both the parties would be almost common in both the proceedings. It is not in dispute that both the proceedings are pending before the same Court i.e. Civil Judge (Senior Division). Shahada. In that view of the matter, it would be in the interest of justice that both the proceedings are tried and decided together.

6. In the result, the writ petition is partly allowed.

The learned Civil Judge (Senior Division), Shahada,, is directed to consolidate the Hindu Marriage Petition No. 52/2005 filed by the petitioner/wife and Hindu Marriage Petition No. 7/2006 filed by the respondent/husband. The learned Civil Judge (Senior Division) shall try both the petitions together and decide the same on merit and in accordance with law.

Rule is made absolute in the above terms with no order as to costs.