IN THE HIGH COURT OF JUDICATURE AT PATNA MA No.23 of 2006 AFSANA PARVEEN Versus MD.NAUSHAD ALI ----------- 9 22.8.2008 Heard learned counsel for the parties. This Misc. Appeal is directed against the order dated 4.10.2004 passed in Matrimonial Case No.46/2003 by the learned Principal Judge, Family court, Bhagalpur, whereby and whereunder the learned Principal Judge has dismissed the application of the respondent-petitioner Md. Naushad Ali as withdrawn. It has been submitted that earlier a case for restitution of conjugal rights was filed by the respondent-petitioner Md. Naushad Ali in the court of the Principal Judge, Bhagalpur, and when the appellant-opposite party Afsana Parveen appeared and expressed her intention to go and live with her husband Md. Naushad Ali, a plea was raised by her husband that he has already divorced his wife. Thereafter, he also pronounced three Talaks in the open court itself and the court arrived at this conclusion that it was a valid Talak and so, the petition for restitution of conjugal rights was not valid. Learned counsel for the appellant has only grievance so far as veracity of pronouncement of three Talaks is concerned. The respondent-petitioner was competent to withdraw any petition which could be said to have been filed on his behalf. But there should not have been any verdict regarding genuineness of such pronouncement of three Talaks and on that basis, petition for restitution of conjugal rights should 2 not have been withdrawn. Learned counsel for the respondent has also been heard. After hearing learned counsel of both the sides, the impugned order is hereby set aside and the matter is remitted to the court below for passing an appropriate order in accordance with law after giving an opportunity to the learned counsel of both the sides of being heard. This appeal is, accordingly, allowed. SKBOSE (Subash Chandra Jha)