Rohinton Minoo Surty vs Kashmira Rohinton Surty ( ...
2021 Latest Caselaw 17976 Bom

Y.S.Patil
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                                                                     15-WP-9439-2021.doc

   IN THE HIGH COURT OF JUDICATURE AT BOMBAY
           CIVIL APPELLATE JURISDICTION
         WRIT PETITION NO. 9439 OF 2021

Rohinton Minoo Surty                                   .. Petitioner
  V/s
Kashmira Rohinto Surty                                 .. Respondent

                                             *******

Ms. K.H. Rajani, for the Petitioner.

Ms. Shivani Jadhav, for the Respondent.

                                             *******

                                           CORAM: A. A. SAYED &
                                                  ABHAY AHUJA, JJ.

DATE : 23rd DECEMBER, 2021.

P.C. :-

Learned Counsel for the parties have pointed out that a Petition has been filed in the Family Court seeking divorce under section 28 of the Special Marriage Act 1954. During the pendency of the Petition, the parties have arrived at Consent Terms for decree of divorce by mutual consent. They have also filed proceedings for divorce by mutual consent under the Parsi Marriage and Divorce Act 1936 in the Parsi Chief Matrimonial Court at Bombay. It is the contention of learned Counsel for the parties that the parties are living separately since 2018. Both are above 50 years of age and there are no children out the said wed-lock. It is pointed out that the

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parties had made a joint Application in the Family Court seeking waiver of 6 months waiting period.

2. Learned Counsel for the Petitioner and learned Counsel for the Respondent state that both the parties are aggrieved by the order passed by the Family Court on the joint Application seeking waiver of 6 months waiting period. The said order read thus:

"Heard. Perused the Application, it is not supported by Affidavit. Admittedly, nothing to show hardship to parties. Application is rejected."

3. Learned Counsel for the Petitioner has pointed out

several judgments including the judgment of the

Supreme Court in case of Amardeep Singh Vs. Harveen

Kaur in Civil Appeal No. 11158 of 2017 (arising out of

Special Leave Petition (Civil) No. 20184 of 2017) decided

on 12th September 2017.

4. Having perused the impugned order, we find that

the said order is cryptic and cannot be sustained. The

learned Judge ought to have granted an opportunity to

the parties to file the Affidavit, if it was necessary. The

impugned order does not contain any reasons.

5. Hence, the impugned order of the Family Court is

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set aside. The matter is remitted back to the Family

Court to decide the Application a fresh. The Family Court

shall decide the Application within a period of two weeks

from the today.

6. The Writ Petition to stand disposed of in the

aforesaid terms. We make it clear that we have not

expressed any opinion on merits.

  (ABHAY AHUJA, J.)                            (A. A. SAYED, J.)