UDAY KUMAR PAUL Vs. MIRA PAUL

JUDGEMENT

(1.) -This Revisional Application arises out of a matrimonial suit and the plaintiff/husband is the petitioner before this Court. The suit was instituted on or about 5.2.91 and in the said suit an application under section 24 of the Hindu Marriage Act for maintenance pendente line and litigation expenses was filed by the defendant/wife, who is the opposite party before us on 2.9.91. While this application was pending disposal the husband on or about 21.4.92, field an application for withdrawal/ abandonment of the suit for non-prosecution in terms of Order 23 Rule 1 of the Code of Civil procedure, to which objection was raised on behalf of the wife/opposite party. The learned District Judge, Burdwan, by his Order, dated 21.4.92, directed that the plaintiff/husband's application would be put up after disposal of the wife's aforesaid application under section 24 of Hindu Marriage Act. The present Revisional Application has been filed by the plaintiff/husband against the said Order.

(2.) On the facts before us, we are unable to hold that, in passing the impugned Order, the learned District Judge has erred, either in law or in the exercise of his jurisdiction, or, that the said Order is, in any way, illegal or irregular. We, accordingly, affirm the same and dismiss the plaintiff's Revisional Application.

(3.) In taking the above view, we have been guided, inter alia, by the following consideration :- Section 24 of the Hindu Marriage Act vests the defendant-spouse with a special right to apply for maintenance pendente lite and litigation expenses in a matrimonial suit. The statute gives this right for the protection of the spouse concerned and to enable her/him to survive and contest the litigation. It has a social implication and justice demands that Courts should be astute in preserving the same in the absence of compelling circumstances beyond its control. The statute also, as the language of the section indicates, contemplates the passing of an Order in terms of the section, for maintenance peadente lite or litigation expenses, during the proceeding and thus implies the disposal of the application in the suit itself. It is well known, too, that Courts exist for doing justice and securing the ends of justice and, necessarily, therefore, for brat purpose, it is entitled to arrange its business in a manner, which will sub-serve that purpose and promote the achievement of that object. If, therefore, an application under section 24 of the Hindu Marriage Act is pending when the plaintiff applies for withdrawal/ abandonment of the suit under Order 23 Rule 1 of the Code of Civil Procedure which would put an end to the proceeding, rendering the section 24 application in fructuous, it is open to the Court to hear out the said application before disposal of the prayer for withdrawal/ abandonment.. This will be perfectly in consonance with principles of justice and will not contravene any rule of law, equity or propriety. A contrary view may lead to injustice, depriving a helpless and needy spouse of the statutory benefit, given to him/her for sustenance and protection pendente lite. Order 23, Rule 1 may entitle the plaintiff to withdraw/abandonment the suit but there is nothing in that provision to oblige the Court to be a witness to the abuse of the same by one party for the purpose of depriving another of his/her right of sustenance and survival. There is nothing in the said provision to oblige the Court to dispose of the application thereunder immediately regardless of other considerations and to the prejudice of pending statutory application, intended for benefit, pendente lite, with retrospective effect. It may not be open to the Court to dismiss the application for abandonment/withdrawal but it has certainly the right to regulate its own proceeding on a judicious adjustment of its business. The Supreme Court cases (M/s. Hulas Rai v. K. B. Bass & Co. reported in AIR 1968 SC 111 and Shaik Hussain & Sons v. M. G. Kaunait reported in AIR 1981 S.C. 1725), cited and relied on by the plaintiff/petitioner, lay down nothing to the contrary and have no application here as the Court has not dismissed the application of the plaintiff/husband but has only post poned its hearing till the disposal of the opposite party's application under section 24 of the Hindu Marriage Act. Thus the Court is entitled to do in the exercise of its powers to met out justice to the parties, and, we have no hesitation in affirming the said power. We, accordingly, find no reason to interfere with the impugned Order.