HONOURABLE MR.JUSTICE B.PRAKASH RAO AND HONOURABLE MR.JUSTICE B.SESHASAYANA REDDY F.C.A.No.150 of 2008 JUDGMENT: (Per Hon’ble Mr.Justice B.Seshasayana Reddy) This appeal is directed against the order dated 24/04/2008 passed in O.P.No.678 of 2004 on the file of the Family Court, Visakhapatnam, whereby and where under the learned Judge of the Family Court allowed the application filed by the wife under Section 10 of the Hindu Marriage Act (for brevity ‘the Act’) and granted Judicial Separation. The petitioner and the respondent are wife and husband. They got married on 29/02/2004 at Vizianagaram and their marriage was consummated. They lived together for some time. Some disputes cropped up between them, and consequently, they fell apart. The mother of the respondent/husband filed O.S.No.41 of 2004 for permanent injunction restraining the wife from entering the house. The wife filed criminal proceedings against the husband, and thereupon, the husband obtained anticipatory bail from the I Additional District Judge, Vizianagaram. While so, the husband filed O.P.No.678 of 2004 under Section 10 of the Act for grant of judicial separation. Pending the petition, he moved I.A.No.352 of 2005 seeking amendment of the relief. The application ended in dismissal, and thereupon, the husband carried the matter in revision and the revision came to be allowed. It appears that the learned Judge of the Family Court proceeded to consider the OP filed by the husband for judicial separation. On behalf of the husband, he got himself examined as P.W.1 and examined two more witnesses as P.Ws.2 and 3 and marked ten documents as Exs.A-1 to A-10. On behalf of the wife, she got herself examined as R.W.1 and examined two more witnesses as R.Ws.2 and 3 and marked Exs.B-1 to B-3. Learned Judge, on considering the evidence on record and on hearing the learned counsel appearing for the parties, proceeded to allow the application and granted judicial separation by order dated 24/04/2008. Hence, this Civil Miscellaneous Appeal by the wife under Section 19 of the Family Courts Act, 1984. The appellant/wife filed F.C.A.M.P.No.279 of 2008 seeking suspension of the operation of the judgment and decree dated 24/04/2008 passed in O.P.No.678 of 2004. When the FCAMP came up for consideration, with the consent of the learned counsel appearing for the parties, the appeal itself is taken up for final disposal. Heard the learned counsel appearing for the parties. Learned counsel appearing for the appellant/wife submits that the trial Court has not correctly appreciated the evidence brought on record and thereby erred in granting judicial separation. Learned counsel appearing for the respondent/husband submits that the trial Court has missed to take into consideration the amendment petition and orders passed thereon and thereby, erred in granting judicial separation instead of dissolving the marriage by grant of divorce. The factual aspect of the respondent/husband filing IA and the same being allowed by this Court in civil revision petition is not disputed by the appellant/wife. In that view of the matter, we deem it appropriate to set aside the judgment impugned in this appeal and remand the matter back to the trial Court to consider the application filed by the husband as one for divorce and pass appropriate orders after giving opportunity to both the parties to place on record further evidence, either oral or documentary, if they so chose. Accordingly, the Civil Miscellaneous Appeal is allowed. It is also brought to our notice that the respondent/husband filed O.P.No.543 of 2009 seeking for divorce and the same is pending adjudication. Such is the situation, the parties are at liberty to make a request to the trial Court for joint trial of both OPs i.e., O.P.No.678 of 2004 and O.P.No.543 of 2009. The trial Court has to make an endeavour to dispose of both OPs within a period of three months from the date of receipt of the copy of the order. No order as to costs. _________________ B.PRAKASH RAO, J _______________________ B.SESHASAYANA REDDY, J Date: 03rd February, 2010 SKM