8a. wp 2050-09.doc RMA IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 2050 OF 2008 Sanjay Sharma & Anr. .. Petitioners Vs Smita Sanjay Sharma .. Respondent Mr. Hakim Salim A.R. for the Petitioners Ms. Sonia Miskin for the Respondent CORAM : MRS. ROSHAN DALVI, J. DATE : 25th JULY, 2011. P.C.: 1. Three orders are challenged in this Writ Petition which are passed by the Judge, Family Court, Bandra, Mumbai. 2. The order dated 3rd August 2007 holds that a suit is not res- judicata because the decree of divorce passed by the competent Court in Meerut was not disposed off finally. That suit is now disposed off finally. Hence, so far as the decree of divorce is concerned, it has become res-judicata. Similarly, it is agreed between the parties that the order relating to custody of the children which has been given to father has been made final. The respondent-wife agrees that even that aspect has become res-judicata. Learned counsel on behalf of the respondent-wife states that the prayers (a) and (b) of the petition cannot and shall not be pressed. 3. The respondent-wife has applied for alimony as well as an 1 8a. wp 2050-09.doc order in respect of her stridhan. The aspect of alimony or stridhan has not been decided by any other competent Court. That aspect would have to be considered. The learned Judge would consider the aspect of alimony and stridhan claimed by the petitioner in the Family Court Petition in accordance with law. 4. The order dated 3rd November 2007 relates to an issue of warrant against the petitioner-husband. Since the aspect of custody and access has been determined, the question of issue of warrant would not survive. The respondent-wife accepts that position. Hence, the order dated 3rd November, 2007 is set aside. 5. The third order which has been challenged is an application for stay under Section 10 of the Code of Civil Procedure (In short, "CPC"). Stay under section 10 of the CPC would be normally in a subsequent proceeding on the premise that the proceeding earlier filed was pending. In this case, a petition proceeding was earlier filed by the petitioner-husband in the competent Court at Meerut. That petition has been disposed of. The decree granted has become final. The subsequent petition filed which could be stayed only pending the earlier petition would now have to be proceeded since the petition filed earlier in time has been disposed off. The learned Judge has rightly considered that the petition with regard to claim for divorce and custody of the children can be stayed but not other reliefs. That is the correct enunciation and conclusion. Consequently, the order dated 12th February 2008 of the learned Family Court Judge cannot be faulted and the petition would survive with regard to the other reliefs viz. relief of grant of alimony as well as relief regarding stridhan claimed by respondent-wife in her 2 8a. wp 2050-09.doc petition filed in Family Court, Mumbai. 6. Consequently, the orders dated 3rd August 2007 and 12th February 2008 cannot be interfered with with regard to the two aspects of alimony and stridhan. Accordingly the Writ Petition stands dismissed with direction to the Family Court to proceed in accordance with law with regard to the claim of respondent- wife about alimony and stridhan in her petition filed in the Family Court, Mumbai. 7. The pleadings are completed. Hence, the trial Court shall proceed in accordance with law. [ ROSHAN DALVI, J. ] 3 8a. wp 2050-09.doc 4