MANGALA W/O JAIKUMAR MAGAR Vs. JAIKUMAR S/O KHELNATH MAGAR
LAWS(BOM)-2017-11-472
HIGH COURT OF BOMBAY
Decided on November 21,2017

Mangala W/O Jaikumar Magar Appellant
VERSUS
Jaikumar S/O Khelnath Magar Respondents

JUDGEMENT

T.V. Nalawade, J. - (1.) Family Court Appeal No.31 of 2017 is admitted.
(2.) Family Court Appeal No.29/2009 is filed by original petitioner, wife to challenge the judgment and decree of Proceeding No. C-26/2006 which was pending in Family Court Aurangabad. The challenge is limited only to the quantum of maintenance. Family Court Appeal No.20/2011 is filed by the husband to challenge the decision given Family Court in Proceeding No. A-261/2006 which was filed by wife under section 10 of the Hindu Marriage Act for judicial separation. Decree of judicial separation is given in favour of the wife on the ground of cruelty. Proceeding No.A-261/2006 and No. C-26/2006 were decided by Family Court Aurangabad by common judgment but the husband has not challenged the decree given of maintenance under the provision of Hindu Adoption and Maintenance Act. Both the sides are heard. Original record was called and that record is perused by this Court.
(3.) The submissions made and the record of the proceeding of Family Court Appeal No.31/2017 pending before this Court shows that on the basis of decree given to the wife of judicial separation, she had claimed divorce under the provision of sections 13(i-a) (i-b) and (1-A)(i) of the Hindu Marriage Act and divorce is given to the wife by Family Court Aurangabad by decision dated 23-12- 2016. This decision given in Proceeding No. A-347/2014 is not challenged by the husband. Family Court Appeal No.20/2011 was filed on 7-4-2010 when the decree of judicial separation was given on 20-8-2009. The proceeding for divorce was filed by wife on 7-8-2014. The proceeding was contested by husband and on merits decree of divorce is given by Family Court. Thus, the circumstance that decree of judicial separation was given in favour of wife and on that basis the wife was claiming decree of divorce is considered by Family Court and then the decree of divorce is given. No stay was given by this Court to the proceeding which was filed by wife for divorce and the decision of divorce is not challenged by the husband. In view of these circumstances, the challenge of the husband to the decree of judicial separation cannot be considered. Due to these circumstances, the appeal of the husband bearing Family Court Appeal No.20/2011 needs to be dismissed.;


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