IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.720 of 2007 ---- Chanda Kumari daughter of Krishna Kumar Chaudhary, resident of Village- Badhauna, P.S. Bidyapati Nagar, District-Samastipur. --Defendant- Petitioner. Versus Ashok Chaudhary, son of Late Uma Shankar Chaudhary, resident of Village-Tabhka, P.S. Bibhutipur, District-Samastipur. -- Plaintiff-Opposite Party. ------ For the petitioner : Mr. Ashutosh Kumar, Advocate For the opposite party : Mr. Suresh Prasad Singh, Advocate ---- 04. 03.07.2009 Heard learned counsel for the defendant-petitioner as well as learned counsel for the plaintiff-opposite party. 2. This civil revision has been filed by the defendant- petitioner challenging order dated 20.2.2007 by which Divorce Case No.108 of 2006 was dismissed for non-prosecution by the learned Principal Judge, Family Court, Samastipur. 3. It is an admitted fact that plaintiff is the husband of the defendant and the aforesaid divorce case was initiated on the basis of a joint petition filed by both the parties under the provision of Section 13B of the Hindu Marriage Act, 1955 in which it was specifically stated that divorce was sought with mutual consent of the parties because their living together was not possible. 4. It transpires that the said case was filed on 21.11.2006 and when the case was called out on 20.02.2007, the petitioner (wife) was present in the court and the husband (opposite party) was not present in the court and only on that ground, the learned court below dismissed the case for non-prosecution by the impugned order. - 2 - 5. Learned counsel for the petitioner raises two objections. The first is that since the petition for divorce was filed jointly by both the parties and one of them was present in the court at the relevant time, there was no occasion for the learned court below to dismiss the case for non-prosecution. The other point raised by the petitioner is that under the provision of Section 13B (ii) of the Act, no motion by the parties could be made earlier than six months after the date of the presentation of the petition filed under Section 13B of the Act and hence he submits that there was no occasion for the learned court below to dismiss the said case. 6. On the other hand, learned counsel for the opposite party vehemently opposes the contentions of learned counsel for the petitioner and submits that petitioner has filed a criminal case against the opposite party for offences punishable under Section 498A of the Indian Penal Code and it amounts to her denial of the joint claim. In reply thereto, learned counsel for the petitioner submits that the said case was filed much subsequently on 26.03.2007 which is subsequent to the date of the impugned order dated 20.2.2007. 7. Apart from the aforesaid facts and circumstances, it is quite apparent that the neither the petitioner nor the opposite party had ever filed any petition before the learned court below claiming that they do not want to continue with the said litigation and hence the learned court below was not at all justified in dismissing the divorce case in such a manner and that too before the expiry of the statutory period of six months from the date of filing of the divorce - 3 - case. 8. In the aforesaid facts and circumstances, this court finds that the learned court below has committed clearly an error of jurisdiction while passing its impugned order which is clearly illegal. Accordingly, this civil revision is allowed and the impugned order of the learned court below is set aside. However, either or both the parties would be at liberty to file an appropriate application before the learned court below after expiry of the statutory period if they do not want to continue with the divorce case. Sunil (S. N. Hussain, J.)