JUDGMENT - N.J. PANDYA, J.:---The Appeal arises out of a judgement and decree passed by the Principal Judge, Family Court No. 2, Pune in Petition No. 61 of 1995. The respondent-wife being the petitioner before the trial Court had requested for divorce under the provisions of the Dissolution of Muslim Marriage Act, 1939. She had alleged the ground of cruelty as per section 2 of the said Act. 2. The judgement came to be delivered on 7-3-1996. In between the filing of the petition and the said judgement on 10-11-1995, talaqnama was drawn up and signed by the respective parties and as a result of that, the marriage itself has come to an end. The trial Court ought to have disposed of the petition as it has become infructuous. However, it proceeded to decide the matter on merits and that has been done only on the basis of the unopposed testimony of the original petitioner-wife as per Exh. 21 page 45 of the Paper Book. It has been recorded on 26-12-1996. It shows that the respondent was absent. The talaqnama is produced with list Exh. 23 by the original petitioner-wife. Verifying from the original record, we do find that one of the conditions in the talaqnama was that the respondent-wife has to withdraw the aforesaid petition filed in the Family Court. 3. The absence of the appellant-husband is therefore quite understandable at the time when the deposition of the respondent-wife was recorded. Apparently, the talaqnama has been taken on record after her evidence. 4. In this background, the learned Judge ought to have disposed of the matter as having become infructuous and should not have entered into the merits of the case. There was no necessity for him either to record the evidence of the petitioner which he did ex parte nor was any necessity of discussing the merits of the case. 5. The situation that has arisen before the trial Court was before recording of the evidence by virtue of talaqnama by which the parties have settled the matter. As per Order XXIII, Civil Procedure Code all that was to be done was to take the talaqnama on record and on reading it over to the parties, parties accepting the same and on Court being satisfied about its genuineness and legality, the petition should have been disposed of on that basis alone. 6. As per Order XXIII, Civil Procedure Code all that was to be done was to take the talaqnama on record and on reading it over to the parties, parties accepting the same and on Court being satisfied about its genuineness and legality, the petition should have been disposed of on that basis alone. 6. Today, the situation is that the appellant-husband who is the Government servant in Karnataka State on one hand is a divorced husband as per talaqnama which obviously is with the consent of the parties and on the other hand there is a finding against him on merits. The finding is to the effect that he has practised cruelty and therefore on the ground of cruelty, the wife is entitled to divorce. 7. Obviously, settlement and contest cannot go together. If there is settlement the contest is out of question. Once the contest is taken out, there is no question of considering whether the allegation of cruelty is established not. 8. As if this is not enough, the final order of the trial Court indicates that the decree is passed only on talaqnama. If one reads the judgement, it is clear that the decree is granted not only on talaqnama but also on the ground cruelty having been established under section 2 of the said Act. For the aforesaid reasons, this approach of the trial Court cannot be accepted. 9. We, therefore, set aside the judgement and decree passed by the trial Court. At the same time we also hold that the relationship of the parties husband and wife has come to an end in view of the talaqnama. They therefore ceased to be husband and wife under the said talaqnama. The observations and findings on merits are therefore held to be void. The petition before the trial Court stands dismissed as infructuous. The Appeal stand allowed to that extent only. 10. Under the circumstances, the parties are left to bear their own costs Appeal allowed. -----