1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE Writ Petition No.720 of 2008 Tarak Kumar Ghosh Petitioner Vs. Shomita Tarak Ghosh Respondent Ms.Sandhya Jain i/b. M/s.L.J.Law for petitioner. Mr.Manoj Prajapati i/b. Mohit Gadkari & Co. for respondent. CORAM: B.H.MARLAPALLE, J. April 25, 2008 P.C. 1. Heard. 2. Rule. 3. Respondent waives service. 4. This petition filed under Article 227 of the Constitution arises from the order passed by the Family Court at Mumbai on 1/10/2007. The parties were married at Durgapur in West Bengal on 7/12/2000 according to the Hindu Vedic Rites and Customs and from the said wedlock daughter - Nikita is born on 12/4/2003. However, on or around 3rd September 2003 the petitioner - husband filed M.J. Petition No.1453 2 of 2003 for divorce under Section 13(1)(i-a) of the Hindu Marriage Act, 1955. The said petition was dismissed for non-prosecution on 9/11/2005. The petitioner filed Misc. Civil Application No.2 of 2006 on or about 22/12/2005 for restoration of the said petition and the restoration application has been rejected by the impugned order. The Roznama in M.J.Petition No.1453 of 2003 shows that on 3/8/2004 the Court directed the petition to proceed ex-parte. The petitioner’s Advocate was present on the next two dates i.e. on 16/9/2004 and 29/10/2004. On 13/12/2004 and 11/2/2005 none was present before the Family Court and in fact from 29/10/2004 onwards the Court was vacant and the case was being listed before the in-charge Judge. On 9/5/2005 the new Judge resumed charge and on 20/7/2005 and on 8/9/2005 none was present for the petitioner and same was the case on 10/11/2005 when the Court was pleased to dismiss the petition for non-prosecution. The learned Judge of the Family Court in the impugned order has held that the petitioner - husband was not able to make out good and sufficient reasons compelling him to remain absent and that he was busy in attending the Court at Durgapur could not be a good reason to restore the application. It is to be noted that the 3 respondent - wife has filed petition under Section 9 of the Hindu Marriage Act for restitution of conjugal rights and the same is presently pending before the Addl. District and Sessions Judge at Durgapur in West Bengal. 5. The learned counsel for the petitioner has agreed before me that if the divorce petition is restored to the file of the Family Court, the same could be heard and decided within a fixed period of about three months and if the respondent - wife is required to travel to Mumbai during the trial of the said petition, he is ready and willing to bear the expenses for their travel as well as for lodging and boarding arrangement at Mumbai. I am, therefore, satisfied that it would be in the interest of justice that the petition filed by the husband is restored to the file of the Family Court so that it is decided on its own merits. 5A. Hence the petition is allowed and the impugned order is quashed and set aside. Misc.Civil Application No.2 of 2006 stands allowed and consequently M.J.Petition No.1453 of 2003 is restored to the file of the Family Court. 4 6. The parties will appear before the Family Court on 2nd May 2008 and fix the next date as per the convenience of the Court for recording evidence. In case the respondent - wife desires to file reply, the same shall be filed before 6th June 2008. The petition will be heard and decided as expeditiously as possible and preferably by 31st August 2008. As and when the wife is required to travel to Mumbai along with her father / brother, the petitioner - husband will reimburse the Three Tier A.C. return fare and will also in addition pay a sum of Rs.4000/- per day towards lodging and boarding expenses while at Mumbai. This amount of train fare as well as lodging and boarding expenses will be paid in cash to the learned counsel for the wife in the Family Court. 7. Rule is made absolute accordingly. The amount of Rs.10,000/- deposited by the petitioner - husband in obedience of the order passed by this Court on 11/2/2008 with the Family Court is allowed to be withdrawn by the respondent - wife towards litigation costs. (B.H.MARL