IN THE HIGH COURT OF JUDICATURE AT PATNA MA No.747 of 2009. ------- DINESH PRASAD s/o Sri Shiv Shankar Prasad. R/o village Kalyanpur Gaura P.S.Digha District Samastipur, At present Mohalla Dharampur house of Arun Sharma, P.S. Mufassil District Samastipur. … Appellants. Versus DABY KUMARI W/o Dinesh Prasad D/o Sri Nakchhedi Sah. R/o Mohalla Dharampur P.S.Mufassil District Samastipur. Present Address Village Salakhua P.S.Salakhua District Saharsa…. …. Respondent. ----------- For the Appellant : Mr. Dhirendra Kumar ‘Munna’, Advocate. 6. 17.03.2010 Heard learned counsel for the appellant. In spite of notice, nobody has appeared on behalf of respondent to contest this appeal. Appellant is the husband of respondent and he filed an application under Section 13 of the Hindu Marriage Act seeking divorce on the ground of cruelty and desertion. It is the case of the appellant that his first wife died leaving behind two minor children and, hence, for his convenience and for convenience of children, he married after two years in the year 2004 and initially the respondent behaved properly, but after giving birth to a male child, her behaviour changed and she began abusing the children of the appellant and she was also cruel to the appellant and ultimately on 14th September 2006 she fled away from the house of appellant, taking all articles, belongings and her minor son. As per pleading, on 14th September 2006 she fled away when her relatives had come to the house of the appellant. Following are t he submissions on behalf of the appellant:- 2 The learned Principal Judge, Family Court, Samastipur has dismissed the Divorce Case No. 15 of 2007 filed by the appellant only on a misconception that he was required to produce further medical prescriptions to support the claim that the respondent wife was suffering from mental disorder. He has not taken notice of evidence available on the record to show her cruel behaviour. Such evidence includes the evidence of minor daughter of the appellant from the first wife. On the issue of desertion, the learned court below has also adopted a technical approach and has held that since the filing of the divorce case in the year 2007 and till date of judgment on 8th January 2008 a period of two years had not expired and, hence, the ground of desertion could not be established. It is clear from the records that the respondent chose not to contest the divorce case filed by the appellant before the Principal Judge, Family Court nor she has appeared to contest this appeal. On the basis of such behaviour and attitude of the respondent, it can be safely inferred that she does not want to live with the appellant and does not care about the outcome of the present divorce case. On behalf of the appellant it has been further submitted that the appellant needs some body to take care of his children and by her cruel behaviour the respondent has shown that she does not have the temperament to look after the children from the first marriage and has been cruel to them. It has further been submitted on behalf of appellant that since the respondent has a son born on account of marriage with the appellant, the appellant is willing to 3 provide monetary help for maintenance of the respondent and the minor son. In our considered opinion, in the facts and circumstance of the case particularly when the respondent has not cared to contest the divorce proceeding, at this stage the appellant deserves to be given at least a relief by way of a decree for judicial separation so that if the relationship does not improve in future, he may persue his remedy through subsequent proceeding for divorce. This course of action was open to the Family Court in view of provisions in Section 13A of the Hindu Marriage Act, 1955. in our view it would also be appropriate to direct the appellant to pay an interim maintenance to the respondent for taking care of herself and her minor son at the rate of Rs.750/- (Rupees seven hundred fifty) per month. Accordingly, this appeal is allowed in part. The impugned judgment and decree of the Principal Judge, Family Court are set aside and instead, we allow a decree for judicial separation with a direction for payment of Rs.750/- per month for maintenance of the respondent and her minor son. There shall be no order as to costs. On receipt of copy of this judgment and order, the court below is directed to communicate this order to the respondent wife through the process of the court so that she may enforce her right of maintenance in terms of this order. Jay/ ( Shiva Kirti Singh,J ) ( C. M. Prasad,J )