1 srk IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE Family Court Appeal Stamp No.61 of 2009 Mohan Kumar Rayana Appellant Vs. Komal Mohan Rayana Respondent Mr.Kevil Setalwad with Mr.Karl Tamboly and Mr.Umang Jaju i/b. D.H.Law & Associates for appellant. Mr.R.T.Lalwani for respondent. CORAM: B.H.MARLAPALLE & D.G.KARNIK,JJ. February 16, 2009. P.C. . Register. . This appeal arises from the order dated 27/3/2008 filed for restoration of Petition NO.A-274 of 2007. The said petition was filed by the appellant - husband before the Family Court seeking divorce and the learned Judge of the Family Court noted that on most of the dates the petitioner remained absent thereby indicating that he was not serious about prosecuting the petition for divorce. This has been denied. 2 . Be that as it may, the fact remains that on 10/1/2008 both the parties were absent and, therefore, the dismissal of the petition by the Family Court would be under Order IX Rule 3 and not under Order IX Rule 8 of CPC. Consequently under Order IX Rule 4 of CPC the appellant - husband is entitled to file a fresh petition for divorce and, therefore, in the peculiar facts of this case, we are not inclined to pass an order directing restoration of Petition No.A-274 of 2006 at the request of the appellant - husband. It is also to be noted that with the passage of time, the husband may find additional grounds for filing a fresh petition for divorce rather seeking an amendment to the petition, if restored. . Hence the appeal is dismissed in limine with liberty to the appellant as is available in law. (D.G.KARNIK,J.) (B.H.MARLAPALLE,J.)