IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.30014 of 2010 Kannilal Gupta @ Kannilal, S/o Shree Ganesh Sah, R/o Village + P.O. Goura, P.S. Bihiyan (Goura P.O.), Dist. Bhojpur, Arrah. --------- Petitioner Versus 1. The State of Bihar. 2. Rita Devi @ Baby, W/o Kannilall Gupta, D/o late Baban Sah, R/o Village Bind Toli, P.S. Ara Nagar, Dist. Bhojpur, Ara. -------- Opp. Parties ----------- 3 09.08.2011 Heard learned counsel for the parties. In this application, a prayer has been made for modification of the order dated 25.6.2008 in Cr. Misc. No. 14362 of 2008, where a direction was given to the petitioner to pay Rs. 750/- per month to his wife- opposite party no.2 on certain terms and conditions. Counsel for the petitioner has submitted that though the petitioner had paid the amount of Rs. 750/- per month for a few months but, then, it was found that neither he nor his wife-opposite party no.2 are willing to live together and, in fact, were also desperate to get their relationship of man and wife severed so as to start their new life. This Court had issued notice to the 2 opposite party no.2, who has appeared through her counsel and in the counter affidavit filed today, she has taken the following stand:- “3. That it is pertinent to state here that the instant deponent had filed a complaint petition bearing no. 1379(C)/2004 corresponding to Tr. No. 1092/10 which is pending in the Court of S.D.J.M., Ara. 4. That it is further pertinent to mention that the entire efforts have been failed for restitution of conjugal life and both the parties are living separately and there is no chance to live together and betterment of life of the parties they would live separately. 5. That it is further pertinent to mention that this deponent also not taking the amount of maintenance as directed by the Court and does not wish live along with petitioner. 6. That the instant deponent does undertake that she will withdraw this case i.e. abovementioned complaint case bearing no. 1379(C)/04, which is pending before Court concerned, Ara. 7. That however, the deponent categorically denies that the instant deponent had married to someone, however, the deponent does not intend to remain with petition because of ill treatment meted out to her by the petitioner as well as 3 by his family member. 8. That in view of the facts and circumstances it is stated that both the parties should live their life separately for betterment of their respective life.” In view of the aforementioned stand of the opposite party no. 2 there would be now no difficulty in allowing the prayer for modification made by the petitioner in this case and accordingly, the direction contained order dated 25.6.2008, as with regard to fixing the liability of payment of Rs. 750/- per month by the petitioner to the opposite party no.2, is hereby recalled. It is, however, made clear that the amount already paid by the petitioner to the opposite party no.2 cannot be recovered by the petitioner and to that extent, the petitioner will have also no right to claim refund of any amount. In view of the fact that the opposite party no.2 herself intends to withdraw her complaint petition, this Court would direct the court below to permit the opposite party no.2 to withdraw her complaint petition. Counsel for the opposite party no.2 4 also submits that there is a matrimonial case pending in the Family Court and the opposite party no. 2 also intends disposal of that case by severance of relationship with the petitioner. In that view of the matter, if the petitioner and opposite party no.2 would file an application seeking mutual divorce, the concerned Family Court would pass an appropriate order in keeping with the requirement of the Hindu Marriage Act. It is, however, made clear that either the court where the complaint case of the opposite party no.2 is pending or the Family Court where her matrimonial case is pending will not unnecessarily delay the disposal of the matter in view of the fact that both the petitioner and the opposite party no.2 have made up their mind not to live together for once and ever with a view to start their life afresh. With the aforementioned observations and direction, this application is disposed of. Rsh (Mihir Kumar Jha, J.)