IN THE HIGH COURT OF JUDICATURE AT PATNA MA No.772 of 2009 KIRAN DEVI WIFE OF BATUL KUMAR VERMA, D/O SRI SACHCHIDANAND SINHA, AT PRESENT RESIDING AT FLAT NO.205 MAHESHWARI KUNZ APARTMENT, ROAD NO.6 EAST PATEL NAGAR, P.S. SHASTRINAGAR, DISTT-PATNA…………….PETITIONER/APPELLANT Versus BATUL KUMAR VERMA, SON OF ISH CHANDRA NARAIN VERMA R/O VILLAGE BHAGWANPUR, P.S. BHAGWANPUR, P.O.BHALHUA, DISTT- KAIMUR, PRESENTLY WORKING AS SORTING ASSISTANT IN R.M.S (RAILWAY MAIL SERVICE) POSTAL DEPARTMENT AT RAILWAY STATION, GAYA DISTT- GAYA……………………………………………..RESPONDENT/RESPONDENT ----------- For appellant:- Sri B.K. Sinha, Sr. Advocate Sri Ranjan Kumar Sinha, Advocate Smt. Seema, Advocate Sri Subhash Kr. Mishra, Advocate For respondent:- Sri Om Prakash Pandey, Advocate Sri J.K. Pandey, Advocate Sri Rajesh Kumar Sinha, Advocate --------------- 13/ 27-08-2010 Heard the parties. 2. Before coming to the necessary facts and formality of adjudication, we would like to record that this is one of the few unusual cases one comes across while hearing matrimonial disputes. The appellant (‘wife’ for brevity) was married to the respondent (‘husband’ for brevity) in the year 1994 and a son, Anish Kumar Verma was born on 11.10.1995. He is presently studying in a school at Patna and doing well in his studies. 3. In 1999 the present litigation began with 2 filing of Matrimonial Case No. 25/1999 by the wife seeking a decree for restitution of conjugal rights. The husband made a counter claim for a decree of divorce on the ground of desertion and cruelty. According to the wife, she was forced to live separately since March 1995 whereas according husband they were living separately since October 1994 itself. After considering the rival cases, the learned Principal Judge, Family Court, Rohtas at Sasaram came to an opinion that since there is allegation and counter allegations from both the sides and since husband and wife were living separately for the last 14 to 15 years the marriage has broken down irretrievably. On such findings and reasonings the claim for restitution of conjugal rights of the wife was rejected and decree of divorce for dissolution of the marriage was allowed along with alimony and maintenance at the rate of Rs.3000/- per month to the wife and at the rate of 1000/- per month to the son, Anish Kumar Verma payable through his mother. 4. Against the judgment and decree dated 30th March 2009 this appeal was filed within time after obtaining certified copy of the judgment and order under appeal and when the appeal was taken up for hearing on 05.05.2010, this 3 Court noticed the stand of the parties and passed a short order which runs as follows:- “ 05.05.2010. The parties are present in person. They are agreed to proceed to the matrimonial home along with minor child, born from the wedlock. However the appellant requires some time to collect her belongings and has also not come to Court with the minor son. The parties are agreed, the respondent along with his counsel shall visit the Chambers of the learned senior counsel for the appellant Sri Birendra Kumar Sinha, on the 15th of May, 2010 at 11:00 A.M., when it is expected that the appellant shall also be present along with the minor son and the three of them shall then proceed to the matrimonial home from the Chambers of the learned senior counsel. Put up this matter for further consideration on the 22nd of July, 2010 when the parties are directed to remain present in person”. 5. On 22nd July, 2010 through a supplementary affidavit the wife disclosed that on the date fixed when she visited the Chambers of the senior counsel from where she was to go with her husband, the husband disclosed to the counsel of the wife that he had already entered into a second marriage with another lady and has a son who is eight years old. By way of reply the husband also 4 filed a counter affidavit claiming that he had extramarital relationship with a lady since 2001 and a son was begotten in 2002 who is eight years old. However, he claimed to have contracted second marriage with that lady in May 2009. Conveniently date of marriage has not been disclosed. 6. In view of developments coming to the notice of the Court, the efforts for conciliation had to be abandoned and the matter had to be heard on merits. It is surprising that even after coming to know about extramarital relationship maintained by the husband and the fact of second marriage with a lady having illegitimate son of the husband since eight years, the wife does not want a divorce. In her supplementary affidavit filed today she has taken a categorical stand that although the husband has concealed the name and address of the lady and has not given any proof as to when he solemnized the second marriage, she does not want to be a divorcee and to avoid such a stigma she is prepared to compromise with the husband by forgiving him and by not taking any further civil or criminal action against him provided he agrees to pay by way of maintenance to her and his son 50% of his salary every month. Taking a reasonable stand on behalf of the wife it has been agreed that she will 5 not insist on 50% of gross monthly salary but she must be paid 50% of whatever net salary he gets after reducing the amount of present deduction which is Rs.6260/-. 7. The wife has further insisted on a condition that as she has decided not to interfere with the personal life of the husband by agreeing to remain separate, the husband should also not interfere with her life and shall not cause any harassment to her by bringing about any civil or criminal action. In other words, the wife has demanded that she should not be called a divorcee but she will live separately and not interfere with the personal life of the husband henceforth on his agreeing to pay the maintenance every month as indicated above. 8. Learned counsel for the husband has consented to the aforesaid terms and has agreed to the proposal that 50% of his gross salary after the deductions indicated above may be sent by the concerned authorities of his Department every month to her bank account, details whereof are indicated in later part of this order. The only concession which the husband wants is that any compulsory deduction of further tax from the gross salary should also be adjusted and only thereafter 50% of the monthly salary 6 should be paid to the wife by the competent authority. This obviously refers to tax liability only in respect of salary income and such condition has been accepted by the wife. 9. We have no hesitation in recording our findings that the judgment and order under appeal is bad in law as well as on facts. The learned court below has not framed proper issues and has avoided to give any findings on the relevant issues. It is further found that the decree for divorce has been granted on a ground which is not permissible in law as is clear from a judgment of Hon’ble Supreme Court in the case of Vishnudutt Sharma V. Manju Sharma reported in 2009 (2) PLJR (SC) 200 . Hence the judgment and decree under appeal are set aside on merits as well as on ground of consent of the parties recorded above. As a result the appellant shall continue to be legally wedded wife of the respondent but she will not insist on restitution of conjugal rights in view of the agreement between the parties indicated above provided the husband fulfils his obligations. 10. Only for the sake of clarification the salient features of the agreement are summarized herein below. (i) The marriage between the parties shall be deemed to be subsisting. 7 (ii) Parties have agreed to live separately and not to interfere with each others private lives. (iii) They have agreed not to pursue any civil or criminal case against each other. (iv) The husband shall ensure that the competent authority of his Department, Railway Mail Service shall send every month to the wife 50% of his monthly salary after deducting only Rs.6260/- per month which is presently being deducted till the scooter loan and such other loans are liquidated. It is also agreed that the deduction shall include any compulsory deduction on account of income tax over the salary income. 11. It is clarified that if in future the husband takes any personal loan payable from the salary then the deduction against such loan shall not be taken into account for calculating the 50% of salary payable to the wife. 12. The competent authority of the Department where the husband is employed are directed to send the monthly maintenance amount indicated above to the wife through crossed cheque or demand draft in the name of wife Kiran Devi payable in her Saving Bank account bearing no. 02312010024370 with Oriental Bank, Exhibition Road, 8 Patna. 13. The dues of maintenance amount, i.e., Rs.40,000/- shall be paid by the husband to the wife within a period of three months from today. 14. The maintenance amount at the new rate indicated above shall be payable from the month of October 2010 and it should be paid in the manner indicated above by 7th of that month and in like manner in each succeeding month. 15. The appeal stands disposed of accordingly. Parties shall bear their own costs throughout. perwez ( Shiva Kirti Singh, J.) (Hemant Kumar Srivastava,J.)