IMPORTANT POINT
The appeal was partly allowed to remand the application for permanent alimony, confirming the divorce decree as unchallenged.

JUDGMENT :

MAULIK J.SHELAT, J.

1. ADMIT. Party-in-person – the respondent herein waives service of notice of admission of appeal. With the consent of parties, the appeal is taken up for final hearing.

2. The present appeal is filed under Section 19 of the Family Courts Act at the instance of original applicant-wife challenging the part of the judgement and decree passed on 24.11.2022 by Family Court No.2, Ahmedabad, in Family Suit No.1218 of 2021, whereby, the Family Court has disposed of the application of the plaintiff filed below Exh.13 under Section 25 of the Hindu Marriage Act, 1955 (hereinafter to be referred to as ‘the Act, 1955’ for short) as not pressed.

3. The short facts of the case appears to be as under:

3.1 The plaintiff solemnized her marriage with the defendant on 24.11.1999 at Delhi. At the relevant point of time she was only 19 years old and out of their wedlock they were blessed with a daughter viz. Sumedha on 21.12.2001 and son Mrigank on 11.02.2009 at Delhi. Both these children are at present with the plaintiff. A dispute arose between the couple which ultimately resulted into filing of Family Suit No.1218 of 2021 by plaintiff-wife under Section 13(1) of the Act, 1955, seeking dissolution of marriage and also decree of divorce.

4. It appears that defendant-husband entering his appearance submitted a pursis below Exh.11 dated 12.11.2021, thereby, agreeing that he has no objection if the prayer in terms of para 6A of the suit filed by the plaintiff may be granted.

5. On the basis of aforesaid pursis of the defendant, it has considered the provisions of Order XII Rule 6 of the Civil Procedure Code and accordingly the Family Court vide its impugned judgement and decree partly allowed the Family Suit No.1218 of 2021 filed by the plaintiff, thereby dissolved the marriage between the parties, then the Family Court, granted decree of divorce.

6. It appears that plaintiff had also filed an application under Section 25 of the Act, 1955 seeking permanent alimony from the defendant-husband at Exh.13 which was also disposed of by Family Court vide its impugned judgement and decree by observing in its operative portion reads as follows:

“(3) The application at Exh.13 filed by the petitioner under Section 25 is hereby ordered to be disposed off as not pressed by the petitioner considering the fact that litigation for seeking maintenance by the petitioner against the respondent is pending before the Court.”

7. The plaintiff on getting such order appears to have approached the very Court by filing an application dated 17.01.2023 which is produced at Annexure-H collectively to the appeal. The plaintiff thereby has requested the Family Court to recall its order passed below Exh.17 and restore the Family Suit on its file as according to the plaintiff, neither plaintiff nor her advocate had requested either in writing or orally to the Court concerned for not pressing her application filed under Section 25 of the Act 1955. We are informed that such application was not on record by the Family Court.

8. So, no order is passed on such application on 17.01.2023 by the Family Court.

9. Being aggrieved and dissatisfied with the impugned judgement and decree qua para 3 of the operative portion which is reproduced herein above, the same is challenged by way of present appeal.

10.We have heard learned advocate Mr.Bhunesh Rupera for the appellant and party-in-person who has joined through virtual mode. After arguing for some time, party-in-person i.e. the original defendant has agreed that operative portion of para 3 of impugned judgement and decree may be quashed and set aside and the matter may be remanded to the Family Court to decide only application of the plaintiff filed below Exh.13 under Section 25 of the Act 1955.

11.Learned advocate Mr.Bhunesh Rupera appearing for the appellant-plaintiff is also ready and willing to such request made by the party-in-person as anxiety of the plaintiff is to decide her application filed below Exh.13, which is