IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.10082 of 2009 Shyam Lal Pathak, son of Late Vishnu Lal Pathak, resident of Mahalla Kath Gacchi, P.S. Civil Lines, Town and District-Gaya. ……Petitioner. Versus Pushpa Devi daughter of Kanhaiya Lal Dhokeresar, resident of Mohalla-Panch Mahalla, P.S. Civil Lines, District-Gaya. …..Respondent. ----------- For the petitioner : Mr. Ray Shivaji Nath, Senior Advocate. Mr. Ray Saurbh Nath, Advocate. For the respondent : Mr. Jyotindra Pratap Singh. -------- 07/ 29.09.2010 Heard learned counsel for the sole petitioner as well as learned counsel for the sole respondent. The respondent claims to be the legally wedded wife of the petitioner, whereas the petitioner denies any such relation between them. 2. This writ petition has been filed by the plaintiff- petitioner challenging order dated 19.05.2009 (Annexure-6) by which Principal Judge, Family Court, Gaya rejected the plaintiff’s prayer for permitting him to withdraw Matrimonial Title Suit No.160 of 2007 which was filed by the petitioner for declaration that defendant-respondent was not legally wedded wife of plaintiff and also for a declaration that order dated 21.07.1997 passed in Misc. Case No.20 of 1987 ( Trial No.575 of 1997) under the provision of Section 125 of the Code of Criminal Procedure was illegal, void non-est and not binding on the plaintiff and also for restraining defendant permanently from realizing any amount from the plaintiff as maintenance. 3. From the arguments of parties and from the materials - 2 - on record it is apparent that Complaint Case No.127 of 1986 was filed by the respondent against the petitioner for offences punishable under Sections 323, 342 and 380 of the Indian Penal Code as well as Section 4 of the Dowry Prohibition Act and the said case was decided by the Judicial Magistrate, Gaya vide order dated 24.04.1989 (Annexure-1) against the respondent. The said order was never challenged. 4. It further transpires that the sole respondent filed Misc. Case No.20 of 1987 against the petitioner for maintenance under the provision of Section 125 of the Code of Criminal Procedure and the said case was allowed vide ex parte order dated 21.07.1997 by the Judicial Magistrate, Ist Class, Gaya. Subsequently the application filed by the petitioner for recall of the aforesaid ex parte order was also dismissed by the said court vide order dated 12.12.1997. Against the said order of the Judicial Magistrate, 1st Class, Gaya passed in Misc. Case No.20 of 1987, the petitioner filed Cr.Misc. No.598 of 1998 which was dismissed by a bench of this court vide order dated 14.03.2007 (Annexure-2) with an observation that the petitioner may approach the civil court for a declaration that there was no marriage between the parties. 5. In view of the aforesaid order of this court, the petitioner filed Matrimonial Suit No.160 of 2007 before the Principal Judge, Family Court, Gaya for the reliefs mentioned above specifically mentioning in paragraph 32 of the plaint that no marriage was ever performed between the plaintiff and the defendant - 3 - and as such she was not a legally wedded wife of the plaintiff and no relationship of husband and wife was ever established between them. 6. Contesting the claim of the plaintiff, defendant- respondent filed her written statement dated 17.05.2008 (Annexure- 4) in paragraph-3 of which it was specifically stated that if the plaintiff wanted to file such type of suit it should be before the Sub- ordinate Judge, Gaya and not before the Principal Judge, Family court, Gaya which had no jurisdiction to give reliefs as claimed by the plaintiff and hence on this ground alone the suit of the plaintiff was fit to be dismissed. The suit was contested on other grounds also. 7. In view of the aforesaid facts and circumstances, plaintiff-petitioner filed an application dated 29.01.2009 (Annexure- 5) under Order XXIII Rule 1 of the Code of Civil Procedure for allowing him to withdraw the suit with the permission to file a title suit in the competent court as directed by the High Court vide order dated 14.03.2007 (Annexure-2) passed in Cr.Misc.No.598 of 1998, which had arisen out of the maintenance case filed by the respondent. 8. The said application of the petitioner has been rejected by the Principal Judge, Family Court, Gaya vide impugned order dated 19.05.2009 (Annexure-6) holding that the plaintiff having claimed that defendant was not his legally wedded wife and there being no bar under any provision of law that the Family court had no jurisdiction to declare the marriage, void, non-est, hence, it was - 4 - presumed that the plaintiff had filed the said application to deceive the provision of the Family Court as well. 9. From the penultimate paragraph of the order of a Bench of this court dated 14.03.2007 (Annexure-2) passed in Cr.Misc No.598 of 1998, the observation is quite apparent that when the marriage is disputed , the Magistrate can still grant maintenance to the wife leaving the husband to establish invalidity of marriage in a competent civil court. Furthermore, the defendant herself in paragraph 3 of her written statement dated 17.05.2008 (Annexure-4) filed in Matrimonial Title suit No. 160 of 2007 had raised an objection that the Family Court had no jurisdiction to decide such case and only the Subordinate Judge, Gaya had the jurisdiction to decide the relief claimed by the plaintiff. In the said circumstances, if the plaintiff-petitioner was seeking permission to withdraw the suit at his own risk, there was no occasion for the Family Court to refuse the said permission as question of maintainability of such title suit before the Subordinate Judge, Gaya was the subject matter to be decided in that title suit and not in the instant matrimonial suit. 10. It may be noted that neither any interim order for injunction nor any interim order for payment of maintenance has been passed by the Principal Judge, Family Court, Gaya in the aforesaid Matrimonial Suit nor any comment has been made about order dated 12.12.1997 passed by the Judicial Magistrate, 1st Class, Gaya in Miscellaneous Case No.20 of 1987 under the provision of Section 125 of the Code of Criminal Procedure. Hence, there was no - 5 - occasion to refuse the prayer of the plaintiff-petitioner to withdraw the suit filed by him at his own risk. 11. In the said circumstances, the impugned order of the Principal Judge, Family Court, Gaya is hereby quashed and the plaintiff-petitioner is permitted to withdraw Matrimonial Title Suit No.160 of 2007 for pursuing Title Suit No.50 of 2009 which has already been filed before Subordinate Judge, Gaya at his own risk. The Subordinate Judge, Gaya shall consider the question of maintainability of the said title suit filed before him in accordance with the provisions of law as well as the case laws. Even if the plaintiff-petitioner looses on that score, he shall not be entitled to file any fresh Matrimonial Suit before the Family Court with respect to the matter as he has already withdrawn his Matrimonial suit at his own risk. 12. With the aforesaid observation/direction, this writ petition is disposed of. Sunil (S. N. Hussain, J.)