1. Heard learned advocates for the parties.
2. This petition is filed under Articles 226 and 227 of the Constitution of India challenging the order dated 13.2.2012 passed below Exhs. 20 and 22 and also order dated 7.5.2012 passed below Exh.25 by learned Family Court, whereby the application filed by the petitioner for dismissing the petition for conjugal right instituted by the respondent and further to stay the proceedings are dismissed despite First Appeal No. 3933 of 2009 filed by the respondent for setting aside the judgment and decree dated 10.8.2009 for divorce granted by the learned Family Court is pending in this Court.
3. In answer to the notice issued by this Court, party-in- person who appears and submits that since First Appeal admitted by this Court decree of divorce dated 5.10.2009 is stayed by the order dated 17.9.2012 in First Appeal No.3933 of HC-NIC Page 1 of 3 Created On Tue Jul 04 01:26:48 IST 2017 SCA/11110/2012 2/3 ORDER 2009. It is further submitted that therefore the effect and operation of divorce decree is no more in existence and application under Section 9 for restitution of conjugal right filed by the respondent-wife is to be proceeded. In support of the argument reliance is placed on decision in the case of Laxmibhai Laxmichand Shah v. Laxmichand Ravaji Shah [AIR 1968 Bombay 332], that in the context of Section 13 (1A) and 23 (1) of Hindu Marriage Act and when the husband is at fault the Court is competent to dismiss the petition for divorce. It is also submitted that Special Civil Application is not maintainable in view of amendment to Section 115 of CPC and reliance is placed in the case of Parakramsinh Vikramsinh Jadeja & Ors. v.Yogi Corporation & Ors. [2002 (3) GLR 2040].
4. Considering the overall facts and circumstances of the case and further decision relied on by learned advocate for the petitioner, in the case of Prakash v. Smt. Kavita [AIR 2008 RAJASTHAN 111] whereby it is held that two petitions namely under Section 9 as well as 13 are inseparable and have to be heard and decided together. In the facts and circumstances of this case it is not in dispute that divorce decree is in favour of the petitioner-husband, of course under challenge in First Appeal in which the stay is granted but at the same time during pendency of the First Appeal if application for restitution of conjugal right under Section 9 of Hindu Marriage Act is proceeded it would create anomalous situation and considering the facts and circumstances, the petition deserves to be admitted.
5. Hence, Rule. Interim relief is granted in terms of para 8 HC-NIC Page 2 of 3 Created On Tue Jul 04 01:26:48 IST 2017 SCA/11110/2012 3/3 ORDER (B) till final disposal.
[ANANT S. DAVE, J.] //smita// HC-NIC Page 3 of 3 Created On Tue Jul 04 01:26:48 IST 2017