1 (26) WP 9459/10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION Amk WRIT PETITION NO. 9459 OF 2010 Sanjay Shrikrishna Jindal .. Petitioner Vs. Maneesha Sanjay Jindal .. Respondent Mr. Vivek Kantawala with Ms. Martha Butala & Ms. Sneha Nanandkar i/b M/s. Vivek Kantawala & Associates for the Petitioner. Mr. Abhay Nevagi for the Respondent. CORAM : MRS. ROSHAN DALVI, J. Date : 16th December, 2010 P.C. 1. Rule made returnable forthwith. 2. There has been an acrimonious litigation in the matrimony between the Petitioner and the Respondent in the Family Court, Mumbai. After certain matrimonial proceedings in the Court in New York, where the parties resided for a while, the Petitioner filed an application for divorce in the Mumbai Family Court on 05.05.2009. The Respondent took out an application for challenging the maintainability of the Petition on 12.02.2010. That application was taken out under Section 21 read with Order VI Rule 16, Order VII Rule 11(d) and Section 151 of the Code of Civil Procedure. Thereafter the Petitioner took out an interim application in his Petition on 13.04.2010 to stay the proceedings in the Court in New York. Since an application for interim relief was taken out, the Respondent wife took out an application under Section 9-A of the Code of Civil Procedure on 14.04.2010. 2 (26) WP 9459/10 Both the applications have been considered together by the learned Family Court Judge in the impugned order. 3. It is seen that an application challenging the maintainability of the Petition cannot be taken out unless written statement is filed. It would form a triable issue in the Suit. The issue relating to maintainability cannot be decided as a preliminary issue unless it relates to the bar of the jurisdiction or the bar under any legislation. That, of course, may be the bar created by Section 1 of the Hindu Marriage Act itself. Nevertheless without filing a written statement the Respondent wife sought to press her application challenging the maintainability of the Petition. That is an incorrect procedure. 4. However the Petitioner then took out an interim application in the Petition. Once the Petitioner took out an interim application, the Respondent had the right to apply to challenge the jurisdiction of the Court under Section 9-A of the Code of Civil Procedure. The jurisdiction of the Court would have to be decided immediately and without waiting for deciding the other issues in the Suit. 5. However the learned Judge has framed an issue whether the Petition is maintainable before the Family Court as a preliminary issue. As aforesaid there is no provision in the Code of Civil Procedure to frame an issue relating to the maintainability under Section 21 read with Order XVI, Order VII Rule 11 of Section 151 of the Code of Civil Procedure. The issue relating to the maintainability could only be decided upon a bar created 3 (26) WP 9459/10 by any law. That issue is, therefore, incorrectly framed. Consequently the order deserves to be interfered with. 6. The application of the wife under Section 9-A of the Code of Civil Procedure has been filed immediately after the application for interim relief of stay of the application in the New York Court has been filed by the husband. That application is correctly filed at the stage at which the Petition in the Family Court was. That application deserves to be heard and disposed of before the Petition proceeds to trial. The learned Judge will have to frame an issue only under Section 9-A of the Code of Civil Procedure. The learned Judge would not be entitled to frame the issue of maintainability of the Petition under the aforesaid provision of the Code of Civil Procedure. Rule is granted to that extent. 7. Writ Petition is disposed of accordingly. Affidavit of Respondent is taken on record. ( ROSHAN DALVI, J.)