IN THE HIGH COURT OF JUDICATURE AT PATNA MA No.509 of 2009 SOBHA GUPTA @ GURIYA @ SOBHA RANI, wife of Hira Lal and daughter of Laxmi Narain Sah, resident of Brahampur, Paschim tola, P.O/P.S Brahampur, Distt Buxar at present residing at Jawahar tola, Arrah, P.S. Arrah- Nawadah, Dist- Bhojpur ..Appellant Versus HIRA LAL, son of Gopal Prasad, resident of village /P.O/P.S Brahampur, Distt- Buxar ..Respondent With MA No.555 of 2010 HIRA LAL, son of Gopal Prasad, resident of village Brahampur, P.S. Brahampur Distt-Buxar ..Appellant Versus SOBHA GUPTA @ GURIYA @ SOBHA Rani, wife of Hira Lal, daughter of Laxmi Narain Sah, of village Brahampur, Paschim tola, P.S Brahampur, at present resident of Jawahar tola, town Arrah, P.S. Arrah- Nawadah, Dist- Bhojpur ..Respondent ----------- 15 28-07-2010 Heard learned counsel for the appellant in M.A. no. 555/2010 who is husband of the sole respondent in this appeal. The other Miscellaneous Appeal bearing no. 509/2009 also arises out of the same judgement and decree of the learned Principal Judge, Family Court, Bhojpur, Ara dated 30-6-2006 passed in Matrimonial case no. 3/2002 166/05. By the judgement under appeal the prayer of the appellant husband, Hira Lal for grant of decree for restitution of conjugal rights or in alternative a decree for divorce has been rejected. Learned Principal Judge took a view that only because the wife had lodged a criminal case of torture in which husband and his family members had to go in jail was not sufficient to suggest cruelty by 2 the wife unless it was found that the criminal case was false. On technicality, learned Principal Judge may be correct but there are certain peculiar features in this case which hve been highlighted from the contents of supplementary affidavit filed today in court on behalf of husband. This supplementary affidavit filed in M.A. No. 555/2010 discloses that wife, namely, Shobha Gupta @ Guriya @ Shobha Rani has now again married with one Kanta Prasad whose details are mentioned in paragraph 2 of the supplementary affidavit. It has further been stated that factum of subsequent marriage by the wife has been brought before the Family Court, Ara through Misc. case no. 59/2009 filed on 5-6-2009. A copy of that petition has been annexed as annexure-1 to the supplementary affidavit. It has further been disclosed that in response to the Misc. case no. 59/2009, the wife of the appellant appeared before the Family Court, Ara and filed a petition dated 15-9-2009 (annexure-2) in which she disclosed that she did not want to pursue the case and was not interested in claiming anything from the husband 3 and she also wants divorce. In the supplementary affidavit there is further averment that the respondent wife has already married and given birth to a child during the pendency of this case. Learned counsel for the respondent wife has fairly stated that inspite of efforts he could not get any further instruction in the matter. In fact the counsel representing the wife in M.A. no. 509/2009 is only present before the court and he has taken the aforesaid stand. In the other Misc. Appeal she has engaged another counsel who has chosen not to appear and in fact the order passed earlier on 20-7-2010 discloses that Shri Brajesh Prasad Gupta, counsel for the respondent wife made a clear submission that he had no sufficient instruction and wanted further time. Thereafter, he has chosen not to appear. The very fact that against the dismissal of the matrimonial suit by the Principal Judge, Family Court, Ara the wife also preferred an appeal shows that she is also opposed to the decision of the Principal Judge not to allow the prayer for divorce. Considering all the facts and circumstances, 4 we are of the considered view that there is consent of both husband and wife for decree of divorce and such desire of both husband and wife should not be denied in the facts and circumstances of the case noticed above. Hence, the order under appeal in both these appeals is set aside and the prayer of the husband seeking divorce is allowed. In view of conduct of the wife appearing from the supplementary affidavit, she is held not entitled to any other relief. Both the appeals stand allowed accordingly. No costs. BKS/- (Shiva Kirti Singh, J.) (Birendra Prasad Verma, J.)