1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FAMILY COURT APPEAL NO. 51 OF 2009 Sanju Bhavesh Singh ........appellant versus Bhavesh Mahendrapratap Singh ........Respondent. Mr. Anil Mishra i/b O.P.Dubey adv. for the appellant. Mr. R.S. Shekhawat adv. for the Respondent. CORAM: A.P. DESHPANDE AND R.P. SONDURBALDOTA, JJ. DATED : 6th April, 2010. P.C.: 1. The present Family Court Appeal questions the correctness of the judgment and decree passed by the Family Court decreeing the counter claim of the respondent husband for divorce. In the petition filed by the wife for divorce on the ground of cruelty, the husband filed a counter claim based on an earlier ex-parte decree for restitution of conjugal rights. As the Family court found that despite the decree for restitution of conjugal rights having been passed, the wife did not join the company of the husband the counter claim is allowed and the decree is passed. 2. According to the learned counsel for the appellant, the appellant has already filed an application for setting aside the ex- 2 parte decree granted by the Family Court for restitution of conjugal rights. In the submission of the learned counsel if and in case the present appellant succeeds in the said application filed for setting aside the decree for restitution of conjugal rights passed in favour of the Respondent, the appellant be permitted to take appropriate proceedings before appropriate forum. It is the submission of the appellant that the appellant be permitted to withdraw the present appeal subject to the liberty to question the correctness of the impugned decree in the event the ex-parte decree is set aside. 3. In the result we permit the appellant to withdraw the appeal with liberty as prayed for. It is made clear that the trial court shall decide the application moved by the present appellant for setting aside the ex-parte decree on its own merit uninfluenced by the observations made in this order. (A.P.DESHPANDE, J.) (SMT. R.P. SONDURBOLDOTA, J.)