PRADEEP KUMAR NANDA Vs. SANGHAMITRA BINAKAR

JUDGEMENT

(1.) This appeal has been preferred by the appellant-husband against the order dated 2-7-2004 of the learned Civil Judge, (Senior Division), Bhubaneswar passed in O. S. No. 342 of 2002.

(2.) The appellant husband and the respondent wife were admittedly married in accordance with Hindu Customs and Rites on 1-12-1999. It is also the admitted case that from 6-6-2001 they are separately residing though appellant husband alleges that the respondent-wife has abandoned the matrimonial home. On 17-6-2002, the appellant husband filed an application under Section 9 of the Hindu Marriage Act, 1955 (hereinafter referred to as 'the Act') for an order of restitution of conjugal rights, before the learned Civil Judge (Senior Division), Bhubaneswar, which was registered as O. S. No. 342 of 2002. It is the case of the appellant husband that due to subsequent developments as he was convinced that the marriage has broken down irretrievably and the spouses cannot live together, on 12-5-2003, the appellant-husband filed an application to withdraw O. S. No. 342 of 2002 and basing on the cause of action, which according to the appellant-husband arose during the pendency of the aforesaid suit, he filed MAT Case No. 338 of 2003 before the said Court for a decree of divorce under Section 13 of the Act. During the pendency of O. S. No. 342 of 2002, the respondent wife filed an application under Section 24 of the Act claiming pendente lite maintenance which was registered as I. A. No. 251 of 2003 and the same was allowed by the learned Civil Judge. Against the said order directing grant of interim maintenance to the respondent wife, the appellant preferred W. P. (C) No. 9089 of 2003 before this Court. During the pendency of the said writ petition, this Court while directing the parties to appear in person made attempts for conciliation which became fruitless on three occasions. By order dated 29-4-2004, the said writ application was disposed of by this Court with a direction to the trial Court to dispose of both the suits within six months, on out of turn basis. However, the direction to pay interim maintenance of Rs. 3000/- per month, which was under challenge in the writ petition, was not interfered with by this Court in the said writ petition. After disposal of the writ petition on 29-4-2004, the respondent wife filed an application under Order 12, Rule 6 C. P. C. in O. S. No. 342 of 2002 on 22-6-2004, making a prayer to pass a decree in the said suit in accordance with Order 12, Rule 6 C. P. C. The learned trial Court by the impugned order dated 2-7-2004 directed the suit to be decreed on admission of the defendant without cost under Order 12, Rule 6 C. P. C. Consequently, the trial Court directed the defendant being the wife, to join the company of the husband within 30 days from the date of pronouncement of the judgment and the petitioner (husband) to accept her company with the child. It appears from the records of the Court below that on the said day, at about 4.30 p. m. the appellant husband filed a petition under Section 151 C. P. C. praying to recall the order and the learned trial Court directed to serve copy of the said petition on the learned counsel for the defendant and to get the same registered as a misc. case. But no further date was fixed to hear the said petition. The appellant thereafter filed the present appeal before this Court on 25-8-2004.

(3.) During the pendency of this appeal by order 8-10-2004, this Court directed the learned Civil Judge (Sr. Division), Bhubaneswar not to deliver the judgment in the Divorce Proceeding being MAT Case No. 338 of 2003 and to keep the same in a sealed cover until further orders. By order dated 9-11-2004, in Misc. Case No. 328 of 2004, this Court called for the records of MAT Case No. 338 of 2003. It also appears from the records of this appeal that by various orders passed by this Court, interim maintenance at the rate of Rs. 3000/- per month which was directed to be paid to the respondent wife, was paid to her and such maintenance till the month of February, 2006 has been paid by the appellant-husband. It further transpires that during the pendency of this appeal also, an attempt was made for conciliation between the parties and by order dated 29-6-2005, it was recorded by this Court that in view of the attitude of the parties, it appears that, this matter cannot be disposed of by conciliation.