spb/- 1 wp9540-10.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE SIDE JURISDICTION WRIT PETITION NO. 9540 OF 2010 Shri Rajendra T. Ahirrao ... Petitioner. Vs. Mrs. Jayashri Pramod Patil @ Jayashri R. Ahirrao & Ors. ... Respondents. --- Mr. M.M. Sathaye for the Petitioner. ----- CORAM : D. G. KARNIK, J. DATE : 14th DECEMBER, 2010. P.C. 1 The suit filed by the petitioner for a declaration that the marriage between him and the respondent no.1 was not valid and that the respondent no.1 was not his legally wedded wife, was decreed by the trial court. In an appeal filed by the respondent no.1 challenging the decree she applied for a stay of the decree pending decision of her appeal. The appellate court granted stay to the judgment and decree. Aggrieved by the order of stay, the petitioner has filed the present writ petition. spb/- 2 wp9540-10.sxw 2 The learned counsel for the petitioner submitted that there was a strong evidence that the earlier marriage of respondent no.1 with respondent no.6 was not legally dissolved and therefore, the second marriage of respondent no.1 with the petitioner was void. Consequently, the lower appellate court ought not to have granted a stay. 3 While considering whether the stay during the pendency of the appeal should be granted, the appellate court is not only required to take into consideration the prima facie case and chance of success of the appellant but also the balance of convenience and consequences of grant or refusal of the stay. In the present case, in my view balance of convenience is clearly in favour of the respondent no.1. Not only that there was in fact a marriage between the petitioner and respondent no.1 but the respondent no.1 also given birth to a son of the petitioner. The marriage took place in August, 2001 and subsisted for more than five years. The appellant enjoyed conjugal rights and begot a son to the respondent no.1. If the judgment and decree is not stayed the respondent may be free to marry again and defeat the very purpose of the appeal. A second marriage, during the pendency of the appeal, by the respondent would give rise to a very difficult situation if the appellant were to succeed in her appeal. Under the circumstances, in my view the spb/- 3 wp9540-10.sxw lower appellate court did not commit any error in granting the stay to the judgment and decree passed by the trial court. 4 Writ petition is rejected summarily. [D.G. KARNIK, J.]