Partly allowed

Mrs. Batul Viraf Aga v. Mr. Viraf Abbasali Aga

Bombay HC8 Apr 2013WP/3183/2013

Case brief

AI extract

What is this about?

This writ petition challenged the striking out of issues Nos. 4 and 5 in a divorce case by the lower court on the ground that they were ill-worded. The High Court held that striking out was erroneous and directed the lower court to answer the issues based on evidence and applicable law.

What did the court decide?

High Court directed the learned Judge not to strike off issue Nos. 4 & 5 but answer them based upon evidence and applicable law.

Mrs. Batul Viraf Aga Vs Mr. Viraf Abbasali Aga — Matrimonial and Divorce | Bombay HC (2013)

WP No.3183_2013

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

¶5

WRIT PETITION NO.3183 OF 2013

Mrs. Batul Viraf Aga

-- Petitioner

V/s.

Mr. Viraf Abbasali Aga

¶10

-- Respondent

¶11

Mr. Pradeep Lamba, Adv. for the Petitioner. Mr. Zaheer Pathan, Adv. for the Respondent.

¶12

CORAM : MRS. ROSHAN DALVI, J. DATE : 8th April, 2013.

¶13

P.C. :-

¶14

Rule. Made returnable forthwith.

¶15

The challenge in this Writ Petition to the impugned order of the learned Judge Family Court No.2, Pune dated 27^th February, 2013 is to striking out issue Nos.4, 5, 6 & 7. The reasoning of the learned Judge is that they are not happily worded and therefore, are required to be recast and after giving reasons why the wife would not be entitled to certain reliefs as per those issues to conclude that they are not happily worded and hence liable to be struck off.

¶16

The main petition is under the Dissolution of Muslim Marriage Act, 1939. The Petitioner wife in the petition applied for reliefs under that Act and under the Muslim Women (Protection of Right on Divorce) Act, 1986 (MW Act).

¶17

The learned Judge framed 10 issues. The first three issues relate to the Dissolution of Muslim Marriages Act. The next four issues claim to be under the MW Act. The further three issues are general and relating to what the Petitioner entitled for.

WP No.3183_2013

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The learned Judge has struck off issue Nos.4, 5, 6 & 7. The Petitioner claims that issue Nos.4 & 5 must be framed and decided. Of course, it need be hardly stated that they may be decided on merits and in favour of either the Petitioner or the Respondent. The learned Judge has considered same on merits in the impugned order itself. Those merits are not required to be considered for keeping or striking of the issues. Those merits are required to be considered for answering issues. It may be mentioned that the Petitioner would be entitled or not entitled to any of these reliefs on merits.

¶22

Certain other proceedings are filed in the Civil Court. It would be for the learned Judge to decide whether or not to grant relief in those proceedings. Nevertheless the Judge is bound to frame and answer the issues that arise in the proceedings before him.

¶23

Consequently, the impugned order is required to be interfered with to the extent of issue Nos.4 & 5. The learned Judge is directed not to strike off issue Nos.4 & 5 but answer them based upon evidence which is led, the argument of the parties and the applicable law.

¶24

Rule to that extent is granted.

¶25

Writ Petition is disposed off accordingly.

¶26

( ROSHAN DALVI, J.)

Mrs. Batul Viraf Aga v. Mr. Viraf Abbasali Aga

Case brief

What is this about?

What did the court decide?

Mrs. Batul Viraf Aga v. Mr. Viraf Abbasali Aga

Case brief

What is this about?

What did the court decide?

What the court decided

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