KBP 7062-09.sxw 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 7062 OF 2009 Heerabai Hanumant Pawar ..Petitioner Vs. Hanumant Haribhau Pawar ..Respondent ....... Mr.Ganesh Bhujbal, for petitioner. ....... CORAM : A.S.OKA, J. DATE : 18 th SEPTEMBER, 2009. P.C. : 1] Learned counsel for the petitioner states that the respondent is duly served with private notice in terms of order dated 12 th August, 2009 and affidavit of service was filed earlier. He states that now the acknowledgment signed by respondent is received and a fresh affidavit enclosing acknowledgment will be filed within a period of two weeks from today. The said statement is accepted. None appears for respondent. 2] The respondent – husband filed a petition for divorce under Section 13 of the Hindu Marriage Act, 1955. Notice of the petition was served to the petitioner wife. Present petitioner – wife made an application dated 24 th June, 2009, praying for setting aside the order passed by the trial Court to proceed with the petition without written statement. In the said application it is stated that on 13 th March, 2009, when an application for adjournment was made on the ground that the petitioner was ill, the said application was rejected and an order was passed directing that the petition will proceed without the written statement. By the impugned order, in view of Rule 1 of Order 8 of the Code of Civil Procedure, 1908, the prayer made by the KBP 7062-09.sxw 2 petitioner has been rejected. 3] The petition filed by the respondent husband was for seeking a decree of divorce containing very serious allegations. The learned Trial Judge has completely overlooked the fact that what was before him was a petition for divorce. Under Section 21 of the Hindu Marriage Act, 1955, the rules made by this Court under the said Act have overriding effect over the privisions of the Code of Civil Procedure, 1908. In any event, the reasons were disclosed in the application for not filing the written statement earlier. 4] It is stated that the petitioner was ill in March, 2009 and is a very poor person. The impugned order deserves to be set aside. Hence, I pass the following order: (a) The impugned order dated 20 th July, 2009 is quashed ans set aside and the application made by the petitioner on 24 th June, 2009 is allowed. (b) The Trial Court is directed to take the written statement of the petitioner on record. (c) Writ Petition is allowed in the above terms. ( A.S.OKA, J. )