IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.1223 of 2008 SANJAY KUMAR son of Muni Lal Rai, resident of Mohalla- Sanjay Nagar, P. S. Jakkanpur, District- Patna. …. Applicant- Petitioner. Versus 1. ANJU @ ANAMIKA RAI daughter of Balram Prasad Yadav and wife of Sanjay Kumar. 2. Balram Prasad Yadav son of late Ram Prit Yadav. 3. Jayanti Devi wife of Balram Prasad Yadav all are resident of Mohalla- Musallahpur, Mahavir Asthan, Yadav Lane, Lohargali, P. O.- Bankipur P S. Kadamuan, District- Patna. . . Opposite parties-Opposite parties. ------------- 6. 11.08.2010 Heard counsel for the parties. This Civil Revision Application was disposed of by an order dated 31.3.2010, which reads as follows: “Heard Mr. Sri Nandan Prasad Singh, learned counsel for the petitioner and Mrs. Nilima Sinha, learned counsel for the opposite parties. A direction for payment of Rs. 3,000/- per month in the order dated 25.6.2008 by the Principal Judge, Family Court, Patna in Matrimonial Case No. 510 of 2006 was/is the subject matter of this civil revision application. Learned counsel for the petitioner and the opposite parties in fact had earlier agreed for settling the matter outside the court but now it becomes clear that the opposite party no.1 is interested in contesting the litigation only. The order in question came to be passed in a proceeding under Section 24 of the Hindu Marriage Act wherein the demand of the wife opposite party no.1 of Rs. 7,000/- per month was scaled down to Rs. 3,000/- per month. It is not 2 in doubt that the wife opposite party no.1 is a duly wedded wife of the petitioner and therefore, there she would be entitled for being maintained during pendency of the aforementioned Matrimonial Case No. 510 of 2006. It is only the amount of maintenance (quantum) which has been questioned in this application. This Court, after taking into account the findings recorded with regard to the monthly salary as also the admitted fact that the petitioner is employed in the Indian Air Force, is not inclined to interfere with the amount of maintenance fixed at Rs. 3,000/- per month but, then, such amount cannot be allowed to be paid for eternity specially when the matrimonial case itself is for restitution of conjugal right. By conduct of the wife opposite party no.1 as noted above in the connected MJC No. 2756 of 2009 disposed of today by a separate order while recalling the order 3.12.2008 passed in this case, it becomes clear that it is the wife opposite party no.1 who is not prepared to live with her husband. Whether such reasons for her are justified or not can only be gone into in the pending matrimonial case but then the court below will be required to decide the matrimonial case within the fixed span of time. The life of two young persons has come to a standstill on account of the harassing attitude adopted by either of them towards other. In that view of the matter, this Court while not disturbing the impugned order of the learned Principal Judge, Patna would direct him to take up the hearing of the matrimonial case on day- to-day basis and ensure that the same is disposed of within a period of three 3 months from the date of receipt/production of a copy of this order. Let it be made clear that this Court has not expressed any opinion on the merit of the case of the either parties and the same will be disposed of on the basis of its own merit.” Subsequently, a report dated 30.6.2010 at Flag „X‟ has been received from the Court below which reads as follows:- “ In the light of the order dated 31.3.2010 passed in C.R. No. 1223 of 2010 by the Hon‟ble Court, I am submitting some facts for perusal of the Hon‟ble Court and also for necessary guideline: 1. Vide order dated 31.3.2010 passed in C.R. No.1223 of 2010 “Sanjay Kumar vs. Anju @ Anamika Rai & Others” this court was directed to take up the hearing in the Matrimonial Case No. 510 of 2006 on day to day basis and ensure that the same is disposed of within a period of three months from the date of receipt/production of a copy of this order. 2. The abovesaid order the Hon‟ble Court was shown to the learned counsel for both the parties and the case was taken up on day-to-day basis. 3. The aforesaid Matrimonial Case No. 510 of 2006 is pending for evidence and in view of the aforesaid direction the evidence in the case has been taken up and till date four PWs on behalf of the petitioner has been examined and discharge. However, neither opp. Party is appearing nor anybody appears on 4 her behalf to cross examine the witnesses. 4. It is relevant to mention here that this Matrimonial Case No. 510/2006 has been filed the husband for restitution of his conjugal right with his wife U/S 9 of the Hindu Marriage Act. 5. It is also relevant to mention here that it has been informed by the petitioner that he has also filed that Matrimonial Case No. 640 of 2009 for dissolution of his marriage tie with the opp. Party-wife by decree of divorce u/s 13 of the Hindu Marriage Act on the ground of cruelty and desertion. 6. In Matrimonial Case No. 640/09 the summon was issued against the opp. Party wife and the case is pending awaiting service of summon and now the next date fixed in that case is 21.7.2010 awaiting service of summon. 7. From the aforesaid direction of the Hon‟ble Court passed in Civil Revision No. 1223 of 2008 this court has been directed to dispose of the Matrimonial Case No. 510 of 2006 case within three months from the date of receipt/production of the order which has been received on 24.5.10. In Matrimonial Case No. 510 of 2006 the petitioner-husband has sought decree of restitution of his conjugal right wereas in Matrimonial Case No. 640 of 2009 the petitioner-husband has sought decree of divorce against the opp. Party wife. It is further relevant to mention here that in Matrimonial Case No. 510 of 2006, petitioner has already adduced four witnesses and they not been cross examined by the opp. Party and further the opp. Party has absented herself. As such it appears that the above case for restitution of conjugal rights may be disposed of within the three months 5 time. However, any finding given in the Matrimonial Case No. 510 of 2006 may prejudice the case of either party in Matrimonial Case No. 640 of 2009 which is for dissolution of marriage tie by decree of divorce filed u/s 13 of the Hindu Marriage Act which is in preliminary stage.” Pursuant to the report of the Court below kept at Flag “X”, notices were issued for appearance of opposite party nos. 1 and 2 who now have appeared in person along with their counsel. The opposite party no. 1 has taken a plea that since she was not being paid regularly the amount of maintenance as fixed by the court below and affirmed by this Court, she could not continue to appear in course of hearing of the connected Matrimonial Case. It is further submitted by Mrs. Nilima Sinha representing opposite party nos. 1 and 2 that if upto date payment of arrears of amount of maintenance would be made to the opposite party no. 1, she will fully co-operate with the pending proceeding before the Matrimonial Court. Mr. Shree Nandan Pd. Singh, learned counsel appearing on behalf of the husband, petitioner would submit that the payment of arrears of amount had in fact 6 been made by the petitioner but if there be any such amount still payable by the petitioner in terms of the order of the courts, the petitioner is ready for depositing the such amount so that pending matrimonial case filed by the petitioner comes to an end at an early date. Considering the aforementioned submission as also in keeping with the earlier direction of this Court, the petitioner is directed to pay the arrears of amount of maintenance as fixed by the family court in the order dated 25.6.2008 i.e. Rs.3000/- per month from 16.4.2008 and Rs.4000/- as a lumpsum payment by way of expenditure on litigation. It is made clear that this order passed by the Family Court on 25.6.2008 in Matrimonial Case No. 510 of 2006 will remain in force till the divorce case filed by the petitioner, namely, Matrimonial Case No.640 of 2009 shall remain pending before the Family Court. In other words, now when the petitioner does not want to press the Matrimonial Case No. 510 of 2006 relating to restitution of conjugal rights in view of the stand of opposite party no. 1 and would like to withdraw the said case, basically for contesting the aforesaid divorce case 7 filed by him against same opposite party no. 1, this Court would instead of again asking the court below to go into the exercise fixing the amount of ad interim maintenance would direct for continuance of payment of same amount till the final disposal of the divorce case filed by the petitioner , namely, Matrimonial Case No. 640 of 2009. Counsel for the opposite party no. 1 and 2, namely, wife and her father respectively after obtaining instruction from them who are also present in the Chamber has submitted that the opposite party no. 1 has wholeheartedly agreed to contest the divorce case filed by the petitioner on being paid the amount of maintenance. Counsel for the petitioner would submit that whatever amount from the date of the order i.e. 16.4.2008 to November 2010 is payable after deducting the amount already paid to opposite party no. 1, the same will be paid within a period of three months. It is, however, made clear that the hearing of the pending divorce case, Matrimonial Case No. 640 of 2009 would commence only when the entire arrears and current amount would be paid to opposite party no. 1 by 8 the petitioner, but as soon as the hearing of the aforesaid divorce case would commence, the same will be taken up and concluded expeditiously and the opposite party no. 1 will be under obligation to co-operate in the hearing of course on receipt of amount of maintenance on month to month basis. In order to ensure the expeditious disposal of the divorce case filed by the petitioner, this court would direct the opposite party no. 1 of this case to appear in the Family Court either herself or through her counsel on 22nd of November 2010 on which date the petitioner either in person or through his counsel will clear entire dues payable on the head of maintenance as directed above for the period upto November 2010 in one lumpsum and having received the payment of such amount, the opposite party no. 1 will proceed to contest the divorce case strictly in accordance with law. Let a copy of this order be also sent to the Principal Judge, Family Court, Patna which now must take the desired action for dropping the proceeding of Matrimonial Case no. 510 of 2006 on an application filed by the petitioner and starting the proceeding of 9 Matrimonial Case No. 640 of 2009 by fixing a date on 22.11.2010. kanchan/ (Mihir Kumar Jha, J.)