LEENA BOOTAWALA Vs. ALISAGAR ALIAS SALIM MOHAMMAD BOOTWALA

JUDGEMENT

(1.) THE controversy in short for this reference:

(2.) THE appellant approached the Family Court in terms of Section 7(1)(b) of the Family Courts Act for seeking declaration that the appellant was the legally wedded wife of the respondent. She also sought declaration for setting aside of the mutual consent decree granted under the Special Marriage Act. The learned Family Court refused to grant any relief on the ground that since there was no relation of husband and wife because of the Decree of Divorce, it has no jurisdiction. Against the said order, the Appellant filed the present appeal in this Court. The matter was heard by the Division Bench of this Court. The two learned Judges of this Court disagreed in their opinion and conclusions and passed the following order:

(3.) NOW a look at the judgment of the Family Court. After narrating the respective contentions of the parties, the Family Court noted that the appellant had filed a proceeding for divorce under Section 2 of the Dissolution of Muslim Women's Marriages Act, 1939 bearing Petition No.A1300 of 2006 and also for maintenance. On 24th August, 2006 she filed an application for withdrawal as she wanted to challenge the decree of divorce. It was contended by the learned counsel for the respondent before the trial Court that the decree has not been challenged till date. The reason given by the learned Judge to come to the conclusion are found in paragraphs 17 and 18, which read as under: