Oral Judgment:

1. The appellant before this Court is wife and she challenges judgment dated 12.2008 delivered by the District Judge -I, Pandharkawada, affirming the judgment dated 10.2008 passed by the Civil Judge, Senior Division, Pandharkawada (Kelapur). The Civil Judge, has in H.M.P. No.24/2008 presented under section 13[B] of Hindu Marriage Petition, dissolved marriage between the parties because of consent and the custody of two sons with father Pramod was continued as wife agreed not to seek the custody. It is also recorded that wife waived her right of maintenance. This order was

challenged by wife in Regular Civil Appeal No. 68/2008 inter-alia contending that her signature on said petition and accompanying affidavits were obtained under false pretext and she was compelled to place her signature upon it. She contended that both the parties were residing together and there was no separation for a period of one year which is a mandatory requirement. The Lower Appellate Court has considered this ground and in paragraph no.7 found that petition was presented on 4.2008, parties were directed to remain present on 10.2008 and from pleadings it appeared that both parties were not ready to continue their marital tie. In their affidavits, both state that they were residing separately from February, 2007 and hence both were residing away from each other for more than one year before the presentation of the Section 13[B] petition. The Appellate Court also found that the affidavit of wife demonstrated that they were residing separately from one year before filing of the petition. It also noted that Advocate for husband submitted that, wife was residing at house of her brother at Karanji itself and this submission was not .refuted. by appellant i.e. wife. In view of this consideration the appeal came to be dismissed.

2. I have heard Advocate Shri Bhuibar, for appellant - Wife and Advocate Shri Anjan De, for respondent - husband in this background.

3. On04.02.2009 following three questions were framed and after hearing the parties, the appeal was closed for orders/ judgment.

“(1) Whether in present facts and circumstances, there is compliance with provision of Section 23[1] [bb] of the Hindu Marriage Act?

.(2) Whether the petitioner -Wife could have challenged the judgment and order in H.M.P.No.24/2008 in Appeal?

.(3) Whether the petitioner-Wife has indulged in perjury?”

Then it was felt that an attempt for re-conciliation should have been made even in High Court, accordingly, in consultation with both the Advocates sought time for the said purpose till 02.03.2009 and ultimately both of them expressed their inability and stated that efforts undertaken for reconciliation failed. The matter was therefore again heard on 02.03.2009 and on that date Advocate Shri De for respondent invited attention to the provisions of Order 41 Rule 25 of C.P.C. to urge that if this Court finds it necessary, a limited issue or question can be framed and finding upon it can be called from the Trial Court. The appeal was finally closed for judgment on 02.03.2009.

.4. Advocate Shri Bhuibar, has contended that the requirement of law in this respect is very clear and the Civil Judge, Senior Division has to record a satisfaction under Section 23[1][bb] so as to avoid such contentions and arguments from being raised. He invites attention to the fact that address of

.both the parties mentioned in the marriage petition is same and their affidavits also mention very same address. There is nothing on record to show that they were residing away from each other and the petition itself did not demonstrates that parties were staying separately for more than one year. He relies upon two judgments of Honble Apex Court reported at AIR 1998 SC 764--Balwinder Kaur .vrs. Hardeep Singh - Sureshta Devi .vrs. Om Prakash--1991 (1) Mh.L.J. 324, to urge that the Lower Courts have failed to exercise jurisdiction in accordance with the law. AIR 1987 Punjab 191 Smt. Kri