Lee Anne Elton vs Arunoday Singh

14 Jabalpur, Dated : 22-07-2021 Heard through Video Conferencing. Shri Aditya Sanghi, learned counsel for the appellant. Shri Kishore Shrivastava, learned senior counsel with Shri R.S. Siddiqui and Shri Kunal Thakre, learned counsel for the respondent has

prayed for adjournment submitting that against the order of this Court dated

09.03.2021, an SLP has been preferred before the Hon'ble Supreme Court which is likely to come up for hearing tomorrow.

At this stage, learned counsel for the appellant-wife pressing I.A. No.3946/2020, an application for stay under Order 41 Rule 5 of the CPC has prayed for stay of the decree under challenge by submitting that the appellant wants to live with the respondent and there is apprehension that the respondent may enter into second marriage in the meanwhile; and, if so happens, nothing will survive in the appeal and has also submitted that there is a prima facie case and balance of convenience in her favour and if stay is not

granted, she will suffer irreparable injury.

Learned counsel for the respondent opposing the prayer has submitted that the arguments are yet to be heard on the question of maintainability of the appeal and in the SLP which has been filed, there is a prayer for stay and that the interim relief which the appellant is claiming cannot be granted under Order 41 Rule 5 of the CPC and for such a relief, she is required to file an application under Order 39 Rule 1 and 2 of the CPC and in the application, there is no mention that the respondent is going to enter in second marriage.

We have heard the learned counsel for parties and perused the record. We are of the opinion that since the decree of divorce is under challenge in this appeal and if the said decree is allowed to operate and the respondent enters in second marriage in the meanwhile, that will create complication in the 2 FA-445-2020 matter and may frustrate the appeal. We also find that there is a prima facie case and balance of convenience in favour of the appellant and irreparable injury will be caused if the decree is allowed to operate in the meanwhile. It is also worth noting that the matter is being adjourned today at the request of learned counsel for the respondent. Hence considering above and the provisions contained in Section 30 of the Special Marriage Act, 1954, we are

of the opinion that a case for passing the interim order at this stage is made out.

Accordingly, I.A. No.3946/2020 is allowed and the judgment and decree under challenge is stayed by directing the parties to maintain status quo in respect of marriage, till the next date of hearing.

List after one week.

C.c. as per rules.

(PRAKASH SHRIVASTAVA) (VIRENDER SINGH) JUDGE JUDGE

DV

Digitally signed by DINESH VERMA Date: 2021.07.26 17:38:38 +05'30'