IN THE HIGH COURT OF JUDICATURE AT PATNA MA No.630 of 2009 SMT. PUJA KUMARI @ SMT. POOJA AGARWAL, WIFE OF SRI ANUP KUMAR JAGANANI AND DAUGHTER OF SHRI RAJENDRA KUMAR AGARWAL, PRESENTLY RESIDING AT KUMARPARA, PACHALI, SHANTI SABHA, P.S.BHARUL MUKH,P.O. GUWAHATI, ASSAM IN THE DISTRICT OF KAMRUP, ASSAMM--- --Appellant. Versus SHRI ANUP KUMAR JAGANANI SON OF LATE KEDAR NATH JAGANANI,SHOKHANA-2,P.O.BARAUNI,P.S.PHULWARIA, DISTRICT BEGUSARAI AT PRESENT RESIDING AT M/S SHYAM ELECTRICALS RAJENDRA ROAD, P.S.PHULWARIA, BARAUNI, DISTRICT-BEGUSARAI.-- -- RESPONDENT. ----------- FOR THE PETITIONER : Mr. SUNIL SRIVASTAVA FOR THE RESPONDENT : MR. SHASHIDHAR JHA ---- 10. 22.7.2010. We have heard counsel for the appellant and the respondent. The parties were married at Guwahati on 2.6.2006. It is the case of the respondent that the appellant left the matrimonial home on 20.11.2006. The respondent then filed Matrimonial Case No.50 of 2007 from which the present appeal arises for restitution of conjugal rights. The appellant was residing at Guwahati while the proceedings were going on at Begusarai and due to which she was unable to participate in the proceedings but did apprise the Family Court that in absence of any maintenance being awarded inclusive of travelling expenses, she was unable to commute from Guwahati to participate in the proceedings. Hearing 2 proceeded ex parte and restitution of conjugal rights granted to the respondent. We have gone through the judgment under appeal. Even if the appellant had not appeared for whatever be the reason, it was still the obligation of the respondent, as the petitioner, to prove his own case notwithstanding lack of opposition. There is not an iota of evidence or discussion of the respondents willingness to restore conjugal rights, of the steps taken by him on dates and occasions and the refusal of the appellant to reciprocate. The conclusion arrived at para-5 by the Family Court to grant restitution is casual and perfunctory, to say the least. The Family Court could not have lost sight of the fact that the appellant had clearly expressed her inability to participate in the proceedings for lack of finances. It would have been appropriate for the Family Court, once it was made aware of the specific nature of the handicap to direct at least payment of her travelling expenses to enable her to participate in the proceedings rather than penalizing her for her financial incapacity. The proceedings were not just litigation between the contesting parties but a matrimonial matter 3 concerning two human lives and the outcome of their lives that the proceedings may have had. The appellant, earlier in time, had filed a criminal case under section 498A and other provisions of the Indian Penal Code and section 3/4 of the Dowry Prohibition Act against the respondent at Guwahati in which the respondent had entered appearance in response to summons. We are satisfied that the applicant- respondent delayed appearance in the criminal trial to first institute the present application for restitution to build up a defence. The appellant has also filed a Maintenance Claim under section 125 of the Cr.P.C. at Guwahati which is pending and certain orders have been passed. However, during the course of hearing of the present appeal, as noticed in the order dated 22.6.2010, the appellant expressed her desire for a mutual divorce. This is reciprocated by the respondent in his affidavit filed today. As two responsible adults, they have taken a decision to amicably part with the marriage, the law must respect their decision. Counsels for the parties are agreed that the application for mutual divorce shall be filed at Guwahati within a maximum period of six weeks. 4 Counsel for the appellant next submits that she shall not be pursuing 498A proceedings or the maintenance case till the disposal of the proposed application for mutual divorce when this Court expects that all matters shall be finally settled in such proceeding for mutual divorce. Needless to state that any application for mutual divorce has to be decided by the competent court on its own merits in accordance of law without being influenced by any discussions in the present order which is confined for the purpose of disposal of the present appeal. The judgment under appeal dated 28.3.2008 passed in Matrimonial Case No.50 of 2007 by the Principal Judge, Family Court, Begusarai having been found unsustainable, is accordingly set aside. The appeal stands allowed. ahk (Navin Sinha,J.) (Jyoti Saran, J.)