Patna High Court
Vishnu Dayal Choudhary @ Bishnu Dayal … vs Shobha Devi on 18 June, 2025
Author: P. B. Bajanthri
Bench: P. B. Bajanthri
IN THE HIGH COURT OF JUDICATURE AT PATNA
Miscellaneous Appeal No.205 of 2021
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Vishnu Dayal Choudhary @ Bishnu Dayal Choudhary, son of Shital Prasad
Choudhary, resident of Mohalla-Noorpur, P.S.-Madhusudanpur (Nathnagar),
District-Bhagalpur.
... ... Appellant/s
Versus
Shobha Devi, wife of Vishnu Dayal Choudahry and daughter of Late Shankar
Choudhary, resident of Mohalla-Barari, P.O. and P.S.-Barari, District-
Bhagalpur.
... ... Respondent/s
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Appearance :
For the Appellant/s : Mr. Manoj Kumar Jha
For the Respondent/s : Mr. Nishant Sinha
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CORAM: HONOURABLE MR. JUSTICE P. B. BAJANTHRI
And
HONOURABLE MR. JUSTICE S. B. PD. SINGH
CAV JUDGMENT
(Per: HONOURABLE MR. JUSTICE S. B. PD. SINGH)
Date : 18-06-2025
Heard the parties.
2. The appellant has come up in this appeal
against judgment and decree dated 02.01.2020 passed by
the learned Principal Judge, Family Court, Bhagalpur in
Matrimonial Case No. 323 of 2012, whereby the petition
filed by the appellant under Section 13(1)(i-a) of the
Hindu Marriage Act, 1955 (in short 'the 1955 Act') seeking
dissolution of marriage by a decree of divorce, has been
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rejected.
3. The pleaded case of the appellant in his petition
under Section 13 of the Hindu Marriage Act, 1955 is that
the marriage of the appellant was solemnized with the
respondent on 07/05/1999 without taking any dowry and
after marriage, respondent came to the house of appellant
and started leading her conjugal life with the appellant and
during that period respondent was not indulged in her
ancestral business (Toddy sell) of her parental house as
appellant was not doing his ancestral business i.e. selling
of Toddy. After sometime, the behaviour of the respondent
started changing and she used to quarrel with the appellant
and her other in-laws family members. After a long
treatment, seven years after marriage, she was blessed with
two sons namely Jay Kumar (5 years) and Vijay Kumar (4
years) out of her wedlock with appellant.
4. That appellant is living separate from his
parents and two brothers and running a Photostat shop.
The appellant tried his best to meet the needs of his wife
and children but in maintaining his family appellant was in
debt of Rs.25000/-. In the meanwhile, in November, 2010,
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father-in-law of the appellant died and appellant spent
about Rs. 35000/- in his last rituals.
5. After death of her father, the respondent used
to live with her mother and brother at her Maike and
started doing her ancestral business of selling of Toddy.
The appellant requested several times to join her
matrimonial obligation but every time, she refused to join
her Sasural. Ultimately on 16/01/2012 appellant and his
relatives went to her Maike and requested the respondent
to come with him but mother of the respondent and other
members of the family started abusing and assaulting
them, who somehow fled away and saved their lives.
6. The respondent has completely failed to
discharge her matrimonial obligation towards her husband
and other in-laws members. The actions/misdeeds of the
respondent have caused great torture and harassment in the
mind of the appellant. This causes enormous pain and grief
in the mind of the appellant and he found that in spite of
giving best possible love and affection, there was no
change in her behaviour towards him, his parents, relations
and friends. The respondent has left the society and
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company of the appellant and went to her Maike in
November, 2010. The matrimonial relation between the
appellant and respondent has already irretrievably broken
down and there is no hope of restoration of their conjugal
life.
7. After filing of the Matrimonial Case, summons
were issued to the opposite party/respondent but despite of
that the opposite party/respondent did not chose to appear
in the case. Consequently, the case was fixed for ex-parte
hearing against opposite party/respondent vide order dated
01.06.2015
. The Trial Court records show that during the
course of ex-parte hearing the opposite party/respondent
appeared on 27.09.2016 and filed a petition to recall the
order of ex-parte hearing passed against her but on the
same day, the case was dismissed for default due to long
absence of the appellant. The record further shows that
against that order off dismissal, Miscellaneous Petition No.
14 of 2016 was filed by the appellant to recall the order of
dismissal dated 27.09.2016 and ultimately the
Miscellaneous Petition No. 14 of 2016 was allowed on
12.04.2017 and accordingly Matrimonial Case No. 323 of
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2012 was restored.
8. The written statement of opposite
party/respondent has been filed in which she has stated
that the instant case is fit to be dismissed as it is not
maintainable either in the eye of law or on fact. The
appellant-wife has submitted that she is mother of two
children and passing pitiable life since long due to
highhandedness of the appellant who is a man of desperate
character. She further submitted that appellant is habitual
of harassing the respondent due to his illicit relationship
with other married lady and due to this reason, he has filed
Matrimonial Case No. 323 of 2022 seeking dissolution of
marriage without considering the fact that he is father of
two children and if marriage is broken, it will deeply effect
the mental, physical and financial health of the children.
The respondent had never given threat, not ill behaved,
humiliated or quarreled with any in-laws family members
and all the allegations made against the respondent-wife
are fake with a view to take divorce from her. Hence, the
divorce petition is liable to be dismissed.
9. It is submitted on behalf of the appellant that
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during pendency of Matrimonial Case No. 323 of 2012,
the respondent-wife has filed a petition u/s 24 of the Hindu
Marriage Act on 27/06/2018 for getting interim
maintenance by the appellant. After hearing the parties,
learned Principal Judge, Family Court, Bhagalpur vide
order dated 26/11/2018 has allowed the petition of the
respondent filed u/s 24 of the H.M. Act and directed the
appellant to pay Rs. 2000/- per month to the respondent as
maintenance without considering the fact that appellant
runs a photostat shop in his rural village and only earns Rs.
100-150 per day and he is financially crunched due to
pending litigation with the respondent. Due to the
aforesaid reason, appellant could not pay the amount of
interim maintenance on time to the respondent which
resulted in dismissal of Matrimonial Case No. 323 of 2022
which was filed for dissolution of marriage.
10. In a memo of appeal, it is averred on behalf
of the appellant that appellant was ready to pay the due
amount of maintenance as per order of learned Principal
Judge, Family Court but the learned Principal Judge has
not considered the prayer and dismissed the Matrimonial
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Suit in default of payment of maintenance amount.
11. After going through the impugned order
passed by the learned Principal Judge, Family Court, it
appears that the Matrimonial Suit was not decided on
merits rather it has been dismissed simply on the basis of
default in payment of interim maintenance amount
awarded by this Court under Section 24 of the Hindu
Marriage Act. So, the adjudication of the Matrimonial Suit
is required after adducing the evidence of both the parties
and giving an opportunity to both of them to argue on the
basis of materials available on record.
12. Accordingly, the order dated 02.01.2020
passed by the learned Principal Judge, Family Court,
Bhagalpur in Matrimonial Case No. 323 of 2012 is set
aside.
13. The matter is remanded back to the Principal
Judge, Family Court, Bhagalpur to decide the case on
merits after giving opportunity to both the parties to
adduce their evidence. The appellant is also directed to pay
the entire payment of interim maintenance awarded under
Section 24 of the Hindu Marriage Act by the learned
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Principal Judge, Family Court, Bhagalpur on 26.11.2018
within a period of six months from today.
( S. B. Pd. Singh, J)
(P. B. Bajanthri, J)
Shageer/-
AFR/NAFR NAFR CAV DATE 01/05/2025 Uploading Date 19/06/2025 Transmission Date N/A