IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FAMILY COURT APPEAL NO. 33 OF 2010 Farzana Abdul Khalik Batliwala ..... ..... Appellant V/s Abdul Khalik Batliwala ..... ... ... Respondent Ms.Bhavna Jadhav, Adv. for the appellant. Mr.Y.S.Bhate, Adv. for the respondent. CORAM: A.P.DESHPANDE AND SMT. R.P. SONDUR-BALDOTA, JJ. 23rd March, 2010. PC: Admit. By consent of parties appeal is taken up for final hearing at the admission stage. 2. Heard Counsel for both the sides.. 3. The present appellant is the original petitioner before the family court who instituted a marriage petition for restitution of conjugal rights against the respondent-husband. The family court without framing a preliminary issue in regard to maintainability of marriage petition has dismissed the same with cryptic order which reads thus: “As per Mohammedan law marriage petition filed by the petitioner for restitution of conjugal rights is not tenable. Hence it is dismissed as not tenable.” 4. Learned counsel for the appellant has invited our attention to a book titled as Muslim law written by Dr. Tahir Mohmood and in particular to chapter 5 dealing with conjugal rights to contend that 1 petition for restituion of conjugal rights at the behest of Muslim wife governed by Mohammedan law is very much maintainable. The main grievance made by the learned counsel for the appellant is that neither preliminary issue about maintainability of marriage petition was framed by family court and nor parties were afforded an opportunity of being heard on the said question. Thus the impugn;ed order is challenged mainly on the ground that the same has been passed in breach of principles of natural justice. The impugn;ed order is also attacked on the ground that it is bereft of reasons and only records a conclusion. According to the learned counsel for the appellant the impugned order does not stand the test of judicial order. Learned counsel for the respondent does not dispute the fact that neither preliminary issue about maintainability of marriage petition was framed nor were parties heard touching the said question. If that be the factual position, the only point for determination which arises is this appeal is as to whether the impugned order passed by family court is sustainable in law or otherwise. On perusal of the order which is extracted herein above one thing is clear that no reasons whatsoever are recorded by the family court to come to conclusion that a petition for restitution of conjugal rights at the behest of Muslim wife is not maintainable in law. It is also obvious taht the impugned order has been passed in breach of principles of natural justice without affording an opportunity of being heard to the parties touching the question decided by the impugned order. In our considered view, the impugned order is wholly unsustainable in law. Without considering the question as to whether the marriage petition for restitution of conjugal rights by a Muslim women is maintainable 2 against her husband we remand the matter back to the family court for fresh hearing. Needless to mention all the contents raised by respective parties in this appeal are left open to be agitated before the family court. In the result appeal is allowed and the impugned order is quashed and set aside. The marriage petition stands revived. The family court shall frame the issue in regard to maintainability of the petition and afford opportunity of hearing to both the parties on the issue in question and then proceed to decide the said question in accordance with law. Appeal stands disposed of. 23.3.2010. 3