1 wp6627-09.sxw pps IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPLICATION JURISDICTION Writ Petition No. 6627 of 2009 Sanjay Mahadu Soundane .. Petitioner v/s. Alka Sanjay Soundane ..Respondent Mr.Nitanjan P. Shimpi for the petitioner. Mr.Prashant D. Patil for the respondent. CORAM : R.Y.GANOO, J. DATED : 18th April, 2011 P.C. : 1. Heard learned Counsels on both sides. The petitioner had filed Hindu Marriage Petition No.78 of 1979 against the respondent in the court of Civil Judge, Senior Division, Malegaon, seeking decree of divorce under Section 13 of the Hindu Marriage Act. The said petition was dismissed by the judgment and decree dated 7.7.2004. Against that judgment and decree, the petitioner has filed Civil Appeal No.49 of 2004 in the Court of learned District Judge 2, Malegaon. 2 wp6627-09.sxw 2. It is to be noted that Hindu Marriage Petition No.209 of 1993 was filed by the respondent in the Court of Civil Judge, Senior Division, Jalgaon seeking restitution of conjugal rights. The said petition was decided by the judgment and decree dated 6.4.1996 and the present petitioner was directed to co-habit with the present respondent. It is the case of the petitioner that since after 6.4.1996 there was no co- habitation between the parties and that is how the present petitioner is entitled to file a petition for Divorce under Section 13(1-A) of the Hindu Marriage Act, 1956. The petitioner had therefore filed application at Exhibit 16 in Civil Appeal No.49 of 2004 thereby praying for amendment of the main petition No.78 of 1999. That application has been rejected by the learned District Judge-2, Malegaon by his Order dated 12.6.2009. Against the said order dated 12.6.2009, this petition has been filed. 3. In the course of arguments it was indicated to the learned Counsel for the petitioner that if according to the petitioner there has been no resumption of cohabitation between the petitioner and the respondent even after passing the decree dated 6.4.1996 in Hindu Marriage Petition No.209 of 1993 which was for restitution of conjugal rights, 3 wp6627-09.sxw it may provide an independent cause of action to the petitioner for filing a petition for divorce. On hearing this expression, learned Counsel for the petitioner applied for withdrawal of this petition. He submitted that the petitioner be granted liberty to make use of the provisions of Section 13(1)(A) of the Hindu Marriage Act and he be given liberty to institute a petition for divorce in view of the said provisions. In my view, the request is fair. Hence following order is passed. ORDER i) Petition is allowed to be withdrawn. If according to the petitioner he is entitled to a decree as per the provisions of Section 13(1-A) of the Hindu Marriage Act, he is free to file a petition. No specific liberty from this Court is required for instituting petition for divorce. This Court has not expressed any view on the contention of the present petitioner. All points are left open. There shall be no order as to costs. [R.Y.GANOO, J.]