sat 1 fca 59-2011 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FAMILY COURT APPEAL NO. 59 OF 2011 with CIVIL APPLICATION NO. 96 OF 2011 Sejal Dharmesh Ved ...Appellant vs. Dharmesh Ashwin Ved ...Respondent Mr.H.S.S. Murthy with Ms.N.T. Dulia with Mr.A.S. Dhutia i/b. Pinky Bhansali for the Appellant. Mr.Rajan Kumar with Mr.Ashok Singh for the Respondent. Appellant in person present in Court. CORAM : D.B. BHOSALE AND M.L. TAHALIYANI, JJ. AUGUST 25, 2011 P.C :- 1 This appeal is directed against the order dated 4th December, 2010 passed by the Family Court in Petition No.A-2419/2009 by which the application at Exhibit 27 filed by respondent-husband seeking dismissal of the petition for divorce on the grounds mentioned therein has been allowed and as a result thereof, the petition filed by the appellant-wife came to be dismissed. In the petition, the appellant-wife had made the following prayers :- sat 2 fca 59-2011 (a) That her marriage performed with the Respondent on 04.05.1999 be dissolved and decree of divorce be passed in her favour. (b) That the respondent, his family and his agents may be restrained from entering the house at Flat No. 1005 situate on the 10th Floor, Crystal Avenue, ‘B’ Wing, Thakur Village, Kandivali (East), Mumbai-400101. (c) That the respondent, his family and his agents may be restrained from entering the petitioner’s parents house at 602, Kaniya, 10th Road, Khar (West), Mumbai-4000052. (d) That the respondent and any of his family member, agents, servants may please be by an order and injunction of this Honourable Court restrained from selling, alienating, transferring, leasing or creating third party interest/rights in Flat No.1005 situate on the 10th Floor, Crystal Avenue, ‘B’ Wing, Thakur Village, Kandivali (East), Mumbai-400101. (e) That the permanent custody of her daughters Payal and Neeti and may be given to the Petitioner. And / or The Petitioner be granted access of her daughters Payal and Neeti in India / and in USA, Kansas at the time of their vacation in Unites States of America. (f) The permanent custody of the newborn child Kiara may be granted to the Petitioner. (g) That the Respondent be ordered and directed to sat 3 fca 59-2011 return to the Petitioner all her ‘stridhan’ and personal belongings lying at her matrimonial home at Kansas. (h) That the Respondent be directed to pay the Petitioner a monthly maintenance of Rs.3 Lakhs (i.e. USD $6000 apprx.), (i) That in addition to the above the respondent be directed to pay the Petitioner a monthly maintenance of Rs.1 Lakh towards (i.e.USD$2000 apprx.) the new born child Kiara. (j) That the Respondent be ordered and a decree to pay lumpsum amount of Rs.5 Crores (i.e. US $ 1 million apprx.) to the Petitioner as and by way of permanent alimony. (k) For ad interim relief in terms of prayer clauses (b) to (e) above.” 2 The respondent-husband in the application at Exhibit 27 had made the following prayer :- “ In the above facts and circumstances it is prayed that this Hon’ble Court may kindly be pleased to dismiss the petition for divorce and other interim application as being not maintainable and infructuous and pass such other and further orders as this Hon’ble Court may deem fit and proper in the facts and circumstances of the case.” sat 4 fca 59-2011 3 Learned Counsel for the appellant-wife submitted that the Family Court did not consider the other prayers in the petition on merits. From perusal of the prayers made in the petition and so also the application at Exhibit 27 and the impugned order, he submitted, it is clear that the Family Court dealt with only the first prayer in the petition. He submitted that the learned Judge of the Family Court committed grave error of law in not considering the other prayers in the petition after holding that the petition for dissolution of marriage was not maintainable. 4 On the other hand, learned counsel for the respondent submitted, though it is correct that the Family Court did not consider other prayers independently, the petition, in view of the subsequent developments, deserves to be dismissed. In other words, he submitted that the appellant-wife cannot maintain her petition even for other prayers in view of the subsequent developments. 5 We do not propose to enter and examine the controversy raised, and since the learned counsel for the parties are ad-idem that the Family Court did not consider the other prayers on merits, we are satisfied that the sat 5 fca 59-2011 following order shall meet the ends of justice. 6 The impugned order dated 4th December, 2010 is set aside insofar as prayer clauses (b) to (k) in the petition filed by the appellant-wife are concerned. The petition No.A-2419/2009 is restored to file insofar as prayer clauses (b) to (k) are concerned. The Family Court to consider and decide these prayers, as expeditiously as possible and preferably within a period of one year from the date of receipt of this order. The appellant and/or learned Counsel for the respondent to produce copy of this order before the Family Court within two weeks from today. 7 The parties would have a liberty to amend the pleadings/prayers, if they so desire, within six weeks from the date of receipt of this order, file applications, additional documents, if any, and raise all contentions/issues/ objections including the issue of jurisdiction/maintainability of the petition in the Family Court. The Family Court to deal with the petition/application on merits in accordance with law. 8 Insofar as the impugned order dated 4th December, 2010 is sat 6 fca 59-2011 concerned, that would remain in abeyance and the appellant-wife would have a liberty to challenge the same after final disposal of the petition No.A-2419/2009. 9 Pending the hearing and final disposal of the petition No.A-2419/2009 before the Family Court, the interim order dated 16th June, 2011 passed by this Court in respect of custody of the third child shall remain operative and for a period of 15 days from the date of the final judgment/order that will be passed by the Family Court, if adverse to the appellant. By order dated 16th June, 2011, this Court had granted ad-interim order in terms of prayer clause (c) in Civil Application No.96/2011. We have perused the civil application and the prayer clause (c) therein. Keeping that in view, we make it clear that this interim order shall not curtail rights of the parties to pursue legal remedies, if any, before the competent court/s. 10 While passing this order, we shall not be understood to have expressed any opinion on merits of the case and/or on the issues raised by the parties in this appeal. sat 7 fca 59-2011 9 All the contentions of the parties are kept open. 10 We hope that the Family Court shall deal with the petition within the time frame and in accordance with law. 11 It is also open to the parties to file application seeking access to the children before the appropriate court. 12 Civil Application is also disposed of. 13 Parties to act on an authenticated copy of this order. (M.L. TAHALIYANI, J.) (D.B. BHOSALE, J.)