SONALBEN Vs. RAJESHBHAI SOMABHAI PARMAR

JUDGEMENT

(1.) Heard Ms.Dimple Thaker, learned advocate for the appellant and Mr.Chetankumar K.Shah, learned advocate for the respondent. We have also perused the original Record and Proceedings.

(2.) The present appeal under section 28 of the Hindu Marriage Act, 1955 (hereinafter referred to as "the Act" for short) is directed against the judgment and decree dated 21.10.2019 passed by learned Principal Judge, Family Court, Godhra in Family Suit No.58 of 2018 whereby the learned Family Court was pleased to allow the suit under section 13(1)(A) of the Act and was pleased to dissolve the marriage between the appellant and respondent herein.

(3.) Ms.Thaker, learned advocate appearing for the appellant has mainly contended that the respondent preferred the application for restitution of conjugal rights being H.M.P.No.84 of 2017 under section 9 of the Act. Ms.Thaker further referring to the record contended that the said application was allowed by learned Family Court vide order dated 27.4.2018. It was further contended by Ms.Thaker that even after the decree for restitution of conjugal rights under section 9 of the Act, the parties have not stayed together as husband and wife and meanwhile, the respondent herein has preferred the present Family Suit under section 13(1)(A) of the Act for obtaining decree of divorce. It was contended by Ms.Thaker that learned Family Court has misread the provisions of section 13(1)(A)(ii) of the Act which inter alia provides that period of one year should lapse before filing any petition for divorce under section 13 after the judgment and decree under section 9 of the Act for restitution of conjugal rights is allowed. Ms.Thaker, therefore, submits that the petition itself was premature and the impugned judgment and decree, therefore, deserves to be quashed and set aside as the said judgment and decree is passed in premature not maintainable petition under section 13(1)(A) of the Act. Ms.Thaker, therefore, submitted that the appeal be allowed.