\ SerialNo.of Dateof Order with Signature Office Note as toaction(ifany) Order Order taken on Order 0 15.12./ 6 The Petitioner, who is husband of the Respondent, has knocked the door of this Court under Article 227 of the ConstitutionofIndiaassailingvalidityoftheOrdersdated September 08 and 23, 2006 passed by the learned Judge, Family Court, Sikkim at Gangtok as contained in Annexures P-3 and P-5 respectively.[2]HeardMrs. Laxmi chakraborty, learned Counsel appearing for the Petitioner and Mr. N. Rai, learned Counsel appearing on behalfofRespondent.[3]MatrimonialSuitNo.122of2005has been filed by the Petitioner for restitution of his conjugal rights under Section 9 of the Hindu Marriage Act, 1955 at Siliguri (West Bengal) whereas Family Court (Civil) Case Serial Date Order with Signature Office Note as to No, ofOrder ofOrder action (if any)takenonOrder / No. 60 of 2005 at Gangtok has been filed fo his divorce by the Respondent.[4]TheRespondentfiledapetition under Sections 24 and 25 of the Hindu Marriage Act, 1955 Family Court Case No. 19 of 2005 for granting maintenance, pendente lite and litigation expenses apart from permanent alimony as contained in Annexure P-1 on the ground that her husband started ill-treating and torturing her, who also deserted her and made her life miserable and poor; She has no own source of income; and all sincere efforts to bring her husband at home and take her care had gone in vain.[5]Thepetitionerfiled a petition before the Judge, Family Court for staying the Matrimonial proceedings on the following grounds: _ I Serial Date Office Note as to No. of of Order with Signature action (if any) Order Order taken on Order ® J' (ii) This Court cannot stay the instant proceedings in the absence of any Order from a superior Court.[8]Mrs.LaxmiChakraborty, learned Counsel appearing on behalf of the Petitioner contended as following: - (i) The learned Judge has committed an error in observing that no document has been furnished.(ii)Thelearned Judge has failed to consider the effect of Section 10 of the C.P.C. and in the peculiar facts and circumstances, it ought to have stayed her hands. / [9] Mr. N. Rai, learned counsel appearing on behalf of the Respondent, contended that it is fact that no document was furnished by the Petitioner before the Judge, F`amily Court. In view of Section 21 t, Serial Date Order with Signature Office Note as to No. of of action (if any) Order Order taken on Order (i) He has already filed a petition for ® restitution of his conjugal rights before the Additional District Judge, Fast Track Court, Siliguri and if the instant case is allowed to.proceedfurther,theverypurposeofhisSuit will become infructuous(ii)Heisreadyand willing to take back his wife to his house at Siliguri.[6]TheprayerofthePetitioner was opposed on the grounds mentioned in paragraph 4 of the impugned Order.[7]ThelearnedJudge,Family Court rejected the Petitioner's prayer on the following grounds: - (i) No document has been furnished toshowwhentheapplicationforrestitutionof conjugal rights was filed before the Siliguri Court. Order with Signature Office Note as to action (if any) taken on Order of the C.P.C. objection in regard to the instant Suit at Gangtok shall have been taken at the first instance and at the earliest opportunity and unless the Petitioner shows that there has been consequent failure of justice, this writ petition is rit to be rejected. [10] Mrs. L. Chakraborty, in reply, contended that as in the Family Court lawyers are not permitted to appear, therefore, the Petitioner could not raise his objection earlier before the Gangtok Court and its non raising of no consequence. [11] The facts speak for themselves in relation to the strange relationship between the Petitioner and the Respondent. In order to appreciate the differences, we also enquired from the wife yestj5day, who is also present in Court today, We do not want to ` Serial Date Order with Signature Office Note as to No. of of action (if any) Order Order taken on Order /I reduce in writing her plight as narrated by ® //// her as the matter is still subjudice. It is clear that the Petitioner has not raised any objection to the jurisdiction of the Judge, Family Court, Silckim at Gangtok to decide the case on its merit. Section 21 of the C.P.C., strongly relied upon by the learned counsel for the Respondent, comes to her aid. It is also not the case of the Petitioner that he has earlier prayed for granting permission to avail services of a lawyer.[12]Bethatasitmay,wedonotconsider it to be a fit case in which we should exercise our discretion under Article 227 of the Constitution of India.[13}VideOrderdated 23.09.2006, as contained in Annexure P-5, the learned Judge, Family Court has directed the SerialNo.ofOrder i Date'ofOrder Order with Signature Office Note as toaction(ifany)takenonOrder ® Petitioner to pay the Respondent a sum of -T`J i.`-.,. .`,.:`.I,:..;.`_;-:::.;Lli..;.,'.;-+...:i:-Johr-,-c,,.Cnd6t,` Rs,3,OOO/-. per month with effect from October 2006 as maintenance allowance, apart from Rs.2,500/-from October 2005 till September 2006 and Rs.1200/-as litigation expenses. L,[14]Wedonotfin;anyillepitynorthelearnedcounselcj2grashownLsany.` 'I15]AccordinglyL/wedismiss this Writ Petition, but without cost. i`.` (Binod Kumar Roy) Chief LJustice(A.P.Subba) Judge