AI Structured Summary
Not yet generated for this judgment
Judgment
Learned Counsel for appellant submitted that he filed a suit for restitution of conjugal rights u/s 9 of the Hindu Marriage Act (for short, H.M. Act) on 16.9.2000. Thereafter, the respondent wife filed an application u/s 24 of H.M. Act claiming maintenance pendente lite and litigation expenses on 13.12.2000. On the said application, Principal Judge, Family Court, Lucknow passed an order dated 13.11.2001 granting the interim maintenance as prayed for. This is also a submission of Learned Counsel that the parties also attended a conciliation proceeding, and the respondent wife stayed with her husband between 24.5.2004 and 29.7.2004. However, she again left her matrimonial home without a valid reason.
Learned Counsel also submitted that the appellant moved an application for withdrawal of the suit u/s 9 of H.M. Act on 15.1.2005 and the expression of intention of appellant to withdraw the pending suit is enough to treat it as withdrawn. However, contrary to the settled principles of law, the Additional Principal Judge, Family Court, Lucknow, vide impugned order dated 1.5.2009, has directed the appellant to pay the maintenance allowance from 13.11.2001 to 13.7.2006 apart from litigation expenses.
Thus, Learned Counsel submitted that the appellant is not liable to pay any maintenance for the period; the respondent wife had stayed with him between 24.5.2004 and 27.7.2004, besides also for the period after filing of the application for withdrawal of the suit u/s 9 of the H.M. Act.
Learned Counsel referred to and placed reliance upon two judgments in support of his contention. They are: Anil Dinmani Shankar Joshi and Deepak Dinmani Shankar Joshi Vs. Chief Officer, Panvel Municipal Council and Ramnik Khimji Makhecha, and Shiv Prasad Vs. Durga Prasad and Another, The ratio of both these cases is that the mere expression of intention to Court that the plaintiff is withdrawing the suit is enough to allow the withdrawal.
In view of all the aforesaid, we set aside the impugned order dated 1.5.2009 and remand this case to learned Presiding Officer, Family Court Lucknow, to re-examine the matter and pass appropriate orders in terms of the ratio of aforesaid judgments.
The F.A.F.O stands disposed of.