VARSHABEN Vs. JANAKKUMAR JAYARAMBHAI MISTRI

JUDGEMENT

(1.) The appellant original plaintiff has filed this Second Appeal under Section 100 of the Code of Civil Procedure read with Section 28 of the Hindu Marriage Act challenging the judgment and order dated 03.01.2007 passed by the learned 2nd Additional District Judge, Sabarkantha in Regular Civil Appeal No.9 of 2005 whereby the appeal filed by the respondent herein came to be allowed and the judgment and decree passed by the learned Additional 2nd Civil Judge at Himmatnagar on 30.06.2005 in HMP No.32 of 2000 came to be quashed and set aside. The learned Additional District Judge has allowed the petition for divorce by holding that the marriage between the parties stands dissolved subject to the condition that the respondent herein deposits an amount of Rs.2 Lacs towards permanent maintenance within six months from the date of judgment and decree.

(2.) The respondent No.1 original plaintiff husband has filed this cross objection praying for quashing and setting aside the judgment and decree passed by the learned District Judge, Sabarkantha at Himmatnagar in Civil Appeal No.9 of 2005 in so far as and to the extent that it has awarded the amount of permanent alimony and maintenance of Rs.2 Lacs to the wife, and to direct that the amount already deposited by the husband be forthwith refunded to him.

(3.) Initially, this Court vide its order dated 14.08.2008 dismissed this second appeal for want of prosecution. However, by an order dated 12.12.2008 passed in Civil Application No.13070 of 2008 condoned the delay and thereafter the order of even date passed in Misc. Civil Application (Stamp) No.3071 of 2008 restored the Second Appeal to its original file. Thereafter, this Court has issued notice in the Second Appeal on 13.03.2009 and decree of divorce was directed to be remained under suspension. The Second Appeal came to be admitted on 25.09.2009 and following substantial questions of law were framed by this Court for consideration and determination of this Court :-