SOU. SARASWATI GOKUL MAWARE v. GOKUL BABAN MAWARE

Ms.Anjali S. Uthale h/f S.S. Kulkarni for applicant Mr. D. G. Bagwe i/b S. R. Page for respondent CORAM:SMT.RANJANA DESAI & A. A. SAYED, JJ. DATE: 6/2/2008 P.C. . The applicant is the appellant in the instant appeal. She has filed the instant appeal challenging the judgment and order dated 4/10/05 passed by the Principal Judge Family Court, Pune. By the impugned order instead of passing a decree for dissolution of marriage an alternate decree under Section 13A of the Hindu Marriage Act for judicial separation is granted. This appeal was filed on 22/12/05. It is admitted on 18/4/07. 2

We are informed that a civil application for stay of the impugned judgment and decree was filed by the applicant which was withdrawn by her. In the meantime the period of one year having elapsed from the date of the decree of judicial separation the respondent husband has filed divorce proceedings in the Family Court, they are pending.

In the present application the applicant is seeking stay of the said divorce proceedings filed by the respondent. As per Section 13(1A)(i) of the Hindu Marriage Act, 1955 the respondent would be entitled to a decree of divorce, if there has been no resumption of cohabitation between him and the applicant for a period of one year or upwards after passing of the decree for judicial separation. Though the appellant has filed the appeal within the period of one year from the date of decree of judicial separation, it has not been finally decided. The unfortunate result of this is that the period of one year has already elapsed. We are in 2008.

The fear of the applicant appears to be that because the appeal is not decided by reason of the 3 passage of time the respondent would be entitled to a decree of divorce and the pending appeal challenging decree of judicial separation would be frustrated. We see substance in this submission. The appeal having been admitted within the period of one year from the date of decree of judicial separation, the divorce proceedings need to be stayed because the decree of judicial separation itself is subject to challenge. It has not attained finality.

We, therefore, make the civil application absolute in terms of prayer (a). However, in the peculiar facts and circumstances of the case, we expedite the instant family court appeal. We grant liberty to the parties to move this court for fixing an early date of hearing after paper book is prepared.