IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.213 of 2007 BRAJESH KUMAR Versus SMT. RUBI ROY & ORS ----------- 6 29/8/2008 Heard counsel for the parties. In this case when the petitioner, husband having noticed the approach and attitude of the wife that she was not prepared to live with him under the same roof, had only sought for withdrawal of that suit by which he had sought to enforce his right, to restore his right of restitution of conjugal life. Normally, if such prayer was malafide and was actuated to deprive the wife from the amount of maintenance, the wife could have a grievance, but when the petitioner had conveyed to the court below and has also reiterated the same thing before this Court that he has to file a divorce suit after withdrawing his case for restitution of his conjugal rights in my opinion, the court below had no reason to reject such prayer for withdrawal of the suit. Mr. Shashi Shekhar Dwivedi, learned counsel appearing on behalf of the husband petitioner in presence of the petitioner, 2 who is also present in Court has undertaken that the petitioner is prepared to file a suit for divorce within a period of one month from the date of withdrawal of the suit. He has also assured this Court that there was no malafide on the part of the husband-petitioner because every farthing of the maintenance so directed by the court below by way of maintenance pendent-elite under section 24 of the Hindu Marriages Act in the aforesaid proceeding of restitution of conjugal rights, has already been paid, and that if any amount under the order of maintenance so granted still remains due, the same will be cleared before the prayer for withdrawal of the suit seeking restitution of the conjugal rights filed by the petitioner is allowed by the Court below. In such view of the matter, the impugned order cannot be sustained and therefore the impugned order is set aside and the court below is directed to allow the petitioner to withdraw his suit seeking restitution of conjugal rights 3 filed by the petitioner within a period of one week from the date of receipt/ production of a copy of the order. The petitioner, however, will be under obligation to clear the amount of maintenance granted in the aforesaid proceedings till the date of withdrawal of the suit. With the aforementioned observation and direction this application is disposed of. (Mihir Kumar Jha, J.) Abhay Kumar