IN THE HIGH COURT OF JUDICATURE AT PATNA MA No.131 of 2010 Kumari Mamta, wife of Prabhakar Jha, resident of village – Majhaulia, P.S.-Ashok Paper Mills, at present residing at Bajitpur, P.S. Kamtaul, district-Darbhanga. ………..Opp. Party/Defendant/Appellant. Versus Prabhakar Jha, son of Krishna Kumar Jha, R/o Village- Majhauliya, P.S.-Ashok Paper Mills, Kameshwar Nagar, district-Darbhanga. ….Plaintiff/applicant Respondent. For the appellant : Mr. Ajay Kumar Thakur, Advocate Mr. Imteyaz Ahmad Mr. Ravi Ranjan For the respondent: Mr. Prem Kumar Jha, Advocate With Cr. Revision. No. 86 of 2008 Prabhakar Jha, son of Krishna Kumar Jha, R/o Village- Majhauliya, P.S.-Ashok Paper Mills, Kameshwar Nagar, district-Darbhanga. …Opposite Party/petitioner Versus Mamta Kumari @ Kumari Mamta @ Mamta Devi @ Shushri Mamta Mishra @ Pushpa Rani, daughter of Sri Radha Kant Mishra, resident of village & P.O.-Bajitpur, P.S.-Kamtaul, District-Darbhanga & wife of Prashant Kumar Mishra, resident of village-Govindpur, P.S.-Bahadurpur, District- Darbhanga. Presently, residing of mohalla & P.O.- Laxmisagar (holding no.-133), P.S. L.N. Mithila University, District-Darbhanga. …Applicant-Opposite Party. For the petitioner : Mr. Prem Kumar Jha, Advocate For the opposite party: Mr. Ajay Kumar Thakur Mr. Imteyaz Ahmad --------------- 12. 11-11-2011 We have heard the parties at length. The Miscellaneous Appeal has been preferred by Kumari Mamta, wife of respondent, Prabhakar Jha against judgment dated 10.12.2007 passed in Matrimonial Case No. 07 of 2000 by the Principal Judge, Family 2 Court, Darbhanga whereby divorce sought by husband has been allowed not on the ground of adultery as alleged by the husband but on the ground that the marriage has suffered irretrievable break down. The criminal revision is at the instance of the husband directed against order passed on the same date i.e. on 10.12.2007 whereby the learned Principal Judge, Family Court has allowed maintenance of Rs. 2000/- (two thousand) per month to the wife. Learned counsel for the appellant wife submitted that irretrievable break down of marriage is not a permissible ground for grant of divorce and so far as the ground of adultery is concerned, the Trial Court did not find any reliable material against the wife and in favour of the appellant husband. It was further pointed out that in fact the ground of adultery was subsequently developed during course of evidence to allege that the appellant married in the year 2002 one Prashant Kumar Mishra and has allegedly given birth to a child in the clinic of a doctor. But such allegations are beyond the pleadings and no amendment of pleading was made after filing of the matrimonial suit in the year 2000. He further submitted that Rules framed by the Patna High Court governing procedure of matrimonial suits require impleadment of alleged adulterer as a party respondent but that was also not done in this case. Learned counsel for the husband tried to highlight the statement of one 3 Ghanshyam Mishra, brother of the wife who has deposed in favour of the husband as A.W. 7 but has admitted enmity with his father as well as his sister. He also placed reliance upon a police report dated 06.07.2006 which has been marked as Exhibit-2 in support of submissions that the wife does not have good character and she has married one Prashant Kumar Mishra in 2002. There is no dispute that the allegations that the wife has married another person in the year 2002 and that she has several alias names and has given birth to a child in a clinic of a doctor are not available on record in the form of pleadings. However some evidence has been led in respect of such allegations. The alleged adulterer, Prashant Kumar Mishra has not been impleaded. Hence on the pleadings as they stand at the present, it will not be possible to consider the issue of dissolving the marriage on the allegation of adultery. So far as other allegations are concerned, an effort has been made to show that the wife has acted cruelly by refusing to live with the husband and by denying co-habitation. The defence of the wife is cruelty and torture for dowry. A police case for the same has been lodged by the wife against the husband and his family members. The said criminal case is still pending and unless it is decided against the wife, it is not possible to hold that she is guilty of torture and cruelty. 4 Hence it is not possible to accept husband’s case for divorce on the pleadings as they stand. However, as the parties have led evidence and allegations were levelled in a direct manner that the wife has married again with another person and also has given birth to a child and she has other alias names, in the interest of justice and in order to prevent continued agony to the parties who are not living with each other, we remand the matter to the Principal Judge, Family Court to give an opportunity to the husband to amend the pleadings and also implead the alleged adulterers including the second husband, in case he wants to pursue the case further. The necessary amendment in the plaint should be made within two months from today otherwise the suit for divorce shall stand dismissed. In case, the amendment of pleadings takes place as indicated above, then the wife shall be given an opportunity to file additional written statement within a further period of six weeks. Thereafter if the parties are so inclined they may examine their witnesses in support of the amended pleadings and thereafter the Principal Judge, Family Court shall decide the case under Section 13 of the Hindu Marriage Act in accordance with law on the basis of pleadings and evidence. With the aforesaid directions, the Miscellaneous Appeal No. 131 of 2010 is disposed of. 5 So far as Cr. Rev. No. 86 of 2008 against maintenance in favour of the wife is concerned, we find that the maintenance amount has been determined on the basis of evidence that the husband is earning Rs. 10,000/- (ten thousand) per month. In view of this fact, we find no good reason to interfere with the order of maintenance although the husband has submitted that since the wife has tortured the husband, she is not entitled for maintenance. Such plea cannot be accepted at this stage when the matter has been remanded to the Principal Judge, Family Court and hence these issues may be re-agitated after disposal of the matrimonial suit. The Principal Judge, Family Court is expected to decide the suit expeditiously, preferably within six months. Accordingly, the criminal revision is dismissed. Mkc/ (Shiva Kirti Singh, J.) (Shivaji Pandey, J.)