Court No. - 44
Case :- FIRST APPEAL No. - 793 of 2021 Appellant :- Mohan Rathore Respondent :- Nirmala Devi Counsel for Appellant :- Ravi Bhushan Singh
Hon'ble Mrs. Sunita Agarwal,J. Hon'ble Krishan Pahal,J.
This is the appeal filed by the husband. He seeks to challenge the order dated 31.8.2021 passed by the Family Court while disposing of the application paper no.3(ka) in matrimonial case no.134 of 2017.
The said application had been moved under Order 23 Rule 1 C.P.C by the plaintiff husband with the assertion that he does not want to pursue the petition for divorce. While allowing the said application, a condition has been imposed by the Family Court that the plaintiff husband would be liable to pay Rs.6,50,000/- towards interim maintenance within one month. Subject to the said condition, the petition for divorce was allowed to be withdrawn. It is clarified by the Family Court that the order of withdrawal of the suit would be effective subject to the condition of payment of Rs.6,50,000/-.
The contention of the learned counsel for the appellant is that once application for withdrawal of the divorce suit had been filed by the plaintiff, there was no occasion for the Family Court to keep the same pending for two years. And moreover, no condition can be put by the Court while allowing the withdrawal application, inasmuch as, the plaintiff has unfettered right to withdraw the proceedings drawn by him.
Testing the said contention of the learned counsel for the appellant, we may note that in the divorce proceedings drawn by the appellant husband, the respondent wife had moved an application under Section 24 of the Hindu Marriage Act, claiming maintenance for herself and her two children who are being looked after by her. The said application was allowed by the judgment and order dated 18.12.2018. Upon challenge made by the appellant before this Court to the order of interim maintenance, the appeal had been dismissed vide order dated 26.3.2019. An application for execution of the order of maintenance was filed on 12.4.2019. The application for withdrawal of the divorce suit under Order 23 Rule 1 C.P.C was, thereafter, moved on 24.9.2019. During the pendency of the said application, the respondent wife had moved another application for execution on 29.1.2021 for issuance of the recovery warrant to the tune of Rs.6,50,000/- against the appellant. It was stated that the appellant husband had avoided the payment of maintenance with impunity and he shall also arrested and produced in the Court. The wife and children are at the stage of destitution.
Having noticed the said fact we find that the condition imposed by the Family Court vide order dated 31.8.2021 to make the order of withdrawal effective subject to the payment to Rs.6,50,000/- within one month is to ensure compliance of the order of award of interim maintenance to wife and children.
The contention of the learned counsel for the appellant is that the appellant being plaintiff has unfettered right to withdraw the proceedings drawn by him. Testing the same, we may note that though the Order 23 Rule 1 C.P.C gives right to the plaintiff to abandon his claim against all or any of the defendant but sub- Rule (4) of Rule 1 of Order 23 gives power to the Court to award such costs as it may deem necessary while allowing the claim of the plaintiff to withdraw the suit or abandon his claim whether whole or in part.
Looking to the said provision in the facts and circumstances of the case where the appellant husband has violated the order of the Family Court of granting interim maintenance, the Family Court is found justified in imposing the condition for withdrawal of the original proceedings of the divorce suit. It seems to us that the appellant has filed the withdrawal application with a view to frustrate the claim of the wife and his children to seek interim maintenance.
We further find that the appellant has not deposited the amount of Rs.6,50,000/- which was the condition for withdrawal of the suit. As the order of withdrawal is effective only after deposit of the said amount, we provide that the appellant shall continue to pay monthly maintenance to his wife and children as awarded by the order dated 18.12.2018 till the withdrawal order dated 31.8.2021 becomes effective, i.e till the condition imposed by the Family Court is satisfied by the appellant, i.e. the arrears of the monthly maintenance is paid by him. The plaintiff appellant cannot get away in this way. The Family Court is also free to proceed for execution of the order of interim maintenance.
Subject to the above observations and directions, the appeal is dismissed at the admission stage itself.
Order Date :- 27.10.2021 Harshita