IN THE HIGH COURT OF JUDICATURE AT PATNA MA No.640 of 2009 9 14.1.2010 Sudhir Kumar Singh, son of Late Ram Anurag Singh, resident of village Chaknasir, P.O. Sukki, P.S. Patepur, district Vaishali at Hajipur ....... Petitioner/ Appellant VERSUS 1. Chhaya Kumari, Daughter of Satyendra Rai, resident of village Malikaur, P.O. and P.S. Pusa, district Samastipur, at present Golf Field railway Colony South of Raod No.9, Ward No.24, P.S. and District Samastipur. Now Mohalla Magardahi, Old Ward No.24, P.S. and District Samastipur 2. Sri Krishna Kumar Rai son of Uday Rai, resident of village Sastaul Bijhrauli, P.O. Bijhrauli, P.S. Tisiauta, district Vaishali at Present residing at Mohalla Golf Field Railway Colony Road No.9, Q.No.430-B P.S. and district Samastipur, Office Address- Krishna Kumar Rai, Clerk, Under Divisional Controller of Store Divisional Head Quarter, Samastipur ........ Opp. Parties/ Respondents -------- For the Appellant : Mr Jai Nandan Singh, Sr Advocate For Respondent no.1: Mr Abhay Shanker Singh,Advocate For Respondent no.2: None --------- Heard Mr Jai Nandan Singh, learned Senior Advocate appearing for the appellant and Mr Abhay Shanker Singh, learned counsel for respondent no.1. 2. The appellant is husband of respondent no.1 and petitioner of Divorce Case No.10/2005 which has been dismissed by the judgment and order under appeal 2 dated 7th March, 2008 passed by learned Principal Judge, Family Court, Vaishali at Hajipur. 3. The case of the appellant / petitioner is that respondent no.1 was married with him on 10.7.2000 and although she stayed at his house for few days, she acted with cruelty and did not allow the marriage to be consummated and went back to stay at his father’s house. Subsequently, as per appellant, he came to know that respondent no.1 had illicit relationship with her brother-in- law, respondent no.2, from before the marriage. It is further case of the appellant in the plaint that he fell seriously ill for several months but respondent no.1 did not bother to care for him and he came to know subsequently that she continued her illicit relationship even after marriage and for that purpose and to keep the appellant away, she filed a complaint case on 17.11.2000 under Section 498A and other Sections of the Indian Penal Code and Section 3/4 of the Dowry Prohibition Act in court of Chief Judicial Magistrate, Samastipur against the appellant, his brothers, sisters and mother and other relations. She also filed a maintenance case under Section 3 18 of the Hindu Adoption and Maintenance Act in which a decree was passed by the Munsif, Hajipur on 28.11.2003 allowing maintenance of Rs.2500/- per month. In respect of that decree, the appellant has claimed to have filed a second appeal before this Court. 4. In the written statement, the respondent no.1 denied the allegations made in the plaint and alleged that she was meted with cruelty for extracting a Maruti car as dowry. It was pointed out in the written statement that case of the respondent was accepted by the learned Munsif who allowed her claim for maintenance. It was alleged in the written statement that appellant is an engineer in Railway Department and earns annual salary of more than a lakh and also has agricultural income of not less than Rs.two lakh per year. 5. After considering the evidence and materials on record, the learned Principal Judge, Family Court came to an opinion that the case had been filed in the year 2005 and, therefore, allegations appear to be belated and untrue. It also held that there was no independent witness to corroborate the allegations made by the appellant/ 4 petitioner. On these grounds he dismissed the suit. 6. In course of arguments, learned lawyers appearing for both the parties accepted the fact that few days after the marriage in the year 2000, the parties are living separately and have no relationship with each other as husband and wife. Learned senior counsel for the appellant submitted that due to irrevocable break down of the marriage, this Court should reverse the judgment and decree of the Family Court and allow the prayer for divorce at least on the ground of mutual consent because now the respondent no.1 is also desirous of divorce. It was indicated by the learned senior counsel for the appellant that presently appellant is paying a monthly maintenance but he is prepared for paying a reasonable lump sum by way of permanent alimony. 7. Learned counsel for the respondent no.1 fairly accepted the position that parties are living separately and respondent no.1 also is now desirous of divorce and hence, this Court should grant a decree for divorce on the ground that both the parties have consented for the same but he insisted that a reasonable amount of 5 permanent alimony be allowed in favour of respondent no.1 because the appellant has sufficient income and property and respondent no.1 has no means to maintain herself and is presently getting a monthly maintenance of Rs.5000/-. 8. On considering aforesaid submissions, it is apparent that both the parties are agreed that this Court should reverse the judgment and decree and allow a decree for divorce. In that view of the matter, the judgment and decree under appeal are set aside and instead the prayer for divorce is allowed on the basis of consent of the parties and in view of facts which clearly show that the marriage is irretrievable and has broken down irrevocably. 9. So far as payment of permanent alimony is concerned, on proper consideration of submissions of both the parties and materials on record, the permanent alimony is fixed as a lump sum amount of Rs.six lacs. Half of the said amount should be paid by the appellant by 30th June, 2010 and the remaining half by 30th December, 2010. Till the whole amount of Rs.six lacs is paid by the appellant, he shall continue to pay monthly maintenance at the rate 6 of Rs.5000/- per month by 7th of each succeeding month. 10. The appeal is allowed to the aforesaid extent without any order as to costs. (Dipak Misra,CJ) (Shiva Kirti Singh,J.) sk