In view of the above, my answers to the two questions framed in Para 3 above are as under :--
(i) Pending an application under Order 9, Rule 4 of the Code of Civil Procedure, 1908, for restoration of the petition filed by the husband for divorce, the wife can initiate proceedings under Section 24 of the Hindu Marriage Act. 1955, for maintenance pendente lite and expenses of proceedings;
(ii). The husband cannot be allowed to withdraw his application for restoration under Order 9, Rule 4 of the Code of Civil Procedure so as to defeat the wife's application under Section 24 of the Hindu Marriage Act.
Bombay High Court
Vinod Kimar Kejriwal vs Usha Vinod Kejriwal on 20 March, 1992
Equivalent citations: AIR 1993 Bom 160, 1992 (2) BomCR 648, I (1993) DMC 32
Bench: A Savanat
1. This is an unfortunate litigation and that too a civil revision application arising out of an order, in the nature of an interlocutory order, under S. 24 of the Hindu Marriage Act, 1955. The petitioner-husband seeks to challenge the order dated 30th August 1989 passed by the Civil Civil Court, Bombay, in Notice of Motion No. 6849 of 1987 for maintenance pendente lite and expenses of proceedings in accordance with the provisions of S. 24 of the Hindu Marriage Act. Section 24 of the said Act reads asunder:--
"24. Maintenance pendente lite and expenses of proceedings :--
Where in any proceeding under this Act it appears to the Court that either the wife or the husband, as the case may be, has no independent income sufficient for her or his support and the necessary expenses of the proceeding, it may, on the application of the wife or the husband, order the respondent to pay to the petitioner the expenses of the proceeding, and monthly during the proceeding such sum as having regard to the petitioner's own income and the income of the respondent, it may seem to the Court to be reasonable."
2. At the outset, it must be stated that this matter was heard earlier at length by my learned brother A. C. Agarwal, J. last year and efforts were made to bring about a reconciliation in accordance with the mandate of sub-sec. (2) of S. 23 of the Hindu Marriage Act. However, both the learned counsel conceded before me that the said efforts had failed and it was necessary, therefore, to again hear the matter on merits. When this matter was initially taken up by me for hearing on Friday, the 13th March 1992, I again asked both the learned counsel as to whether it was still possible to bring about a reconciliation. Both the learned counsel frankly stated that it was not possible. Since, however, the matter was part heard on Friday, the 13th March, and was thereafter heard on Tuesday, the 17th March, Wednesday, the 18th March and Friday, the 20th March, both the learned counsel were permitted to make a statement if a reconciliation was possible even in the course of hearing, from Friday, the 13th March to this day. However, both the learned counsel frankly stated that it was not possible. Hence, it has become necessary for me to dispose of the matter on the basis of the material before me.
3. Two questions of law arise for my determination, viz. :
(i) Whether pending an application under O. 9, R. 4 of the Code of Civil Procedure, 1908, for restoration of the petition filed by the husband for divorce, can the wife initiate proceedings under S. 24 of the Hindu Marriage Act, 1955, for maintenance pendente lite and expenses of proceedings?.
(ii) Can the husband be allowed to withdraw his application for restoration under O. 9, R. 4 of the Code of Civil Procedure so as to defeat the wife's application under S. 24 of the Hindu Marriage Act?
Since, unfortunately, the petition has a chequered history, a few relevant dates and facts may be stated as under :--
4. The petitioner Vinod married the respondent Usha on 24th May 1983 at Bombay. Son Vishal was born on 8th May 1984. Fortunately, there is no controversy about the paternity of legitimacy of Vishal. It appears that on 26th October 1985 the husband filed a petition in the Court at Mathura, being Petition No. 385 of 1985 for divorce on the ground that the wife was living in adultery and was guilty of cruelty and desertion. The said Mathura Petition was served on the wife on 2nd November 1985 at Bombay. -On the 26th November 1985, the wife filed a petition in the City Civil Court, Bombay, being Petition No. 1102 of 19S5 for restitution of conjugal rights and took out some motions for interim reliefs in the said Bombay Petition. Ad interim order was passed in favour of the respondent-wife in the said Bombay Petition on the 26th November 1985 in the nature of appointment of Commissioner in respect of the bungalow at Goregaon, a suburb of Bombay -- the matrimonial home of the couple.
5. Reverting to the Mathura Petition, the returnable date, mentioned in the summons served on the wife, was 25th November 1985. Admittedly, 27th November 1985 was a holiday on account of Guru Nanak Jayanti. The petition seems to have been wrongly placed on board before the learned Judge, Mathura, on 28th November 1985, thought the returnable date was 29th November 1985. Since none of the parlies was present on 28th November 1985 at Mathura, the petition filed by the husband was dismissed for default on that day. When the wife's brother, who was her constituted attorney, and her Advocate reached Mathura on the 29th November 1985, the day mentioned in the summons served upon her, they found that the petition had been dismissed for default on the prior day. The husband himself realised on the 29th November 1985 that his petition was erroneously dismissed for default on the 28th November 1985. On 29th November 1985 itself, the wife filed a caveat in the Mathura Court, anticipating further proceedings being adopted by the husband. On the 3rd December 1985 one Kanchanlal Agarwal presented an application purporting to act on behalf of the husband and prayed for restoration of the husband's petition, viz. Petition No. 385 of 1985 filed in the Mathura Court for divorce. There is some controversy about this application. However, admittedly, the husband himself presented an application on the 4th December 1985 for restoration of his dismissed petition. The said application has been styled to be an application under O. 9, R. 4 read with S. 153 of the Code of Civil Procedure. The husband has categorically pointed out in the said application dated 4th December 1985 that his petition was to be heard on the 29th November 1985 and not on the 28th November 1985 on which date it was erroneously dismissed. The husband states that he was keen to contest his petition for the relief of divorce; that its dismissal in the manner aforesaid was causing irreparable hardship to him and hence, it was liable to be restored for being heard on merits. On 13th December 1985 the Mathura Court informed the wife's Advocate at Bombay viz. Shri P. H. Wadhwany, that the husband had presented an application for restoration and the hearing of the said application was fixed on 18(h January 1986. In the first week of January 1986, the wife moved the Supreme Court by filing Transfer Petition No. 64 of 1986. The wife contended that the marriage was solemnised in Bombay; the husband was carrying on his business in Bombay; he owned petrol pump and automobile garage in Bombay; he owned a bungalow as also certain shops in Bombay and that the petition was deliberately filed at Mathura with a view to harassing the wife and making it impossible for her to contest the petition with her child of tender age and hence, she prayed for transfer of the petit ion from Mathura Court to the City Civil Court, at Bombay. In the transfer petition before the Supreme Court, the husband filed his affidavit-in-reply denying the allegations made by the wife and contended that since the wife had last resided with him at Mathura in the month of September 1984, the Mathura Court did have the necessary jurisdiction to entertain his petition for divorce. The husband stated in his affidavit-in-rcply that the material witnesses would be available at Mathura and it would, therefore, be extremely difficult and inconvenient if the petition was to be transferred to Bombay. Finally, the husband stated that he would have no objection to the petition being transferred from Mathura to Bombay, subject to the undertaking to be given by the wife that she will have no objection to the examination of the witnesses on commission and that the matter will be disposed of exppdiliously at Bombay. It needs to be stated at this juncture itself that the Supreme Court has passed an order on the 15th December 1986 which reads as under :--
"The respondent has no objection to the suit being transferred to Bombay provided that the wife does not object to the witnesses being examined on commission at Mathura, if it is found necessary to examine them. Suit No. 385 of 1985 and Misc. Application No. 161 of 1985 now pending in the Court of Civil Judge, Mathura are transferred to the City Civil Court, Bombay subject to the condition that the petitioner will not raise any objection to any witnesses being examined on commission, at Mathura.
Transfer petition is disposed of accordingly."
6. Thus, the result of the above Supreme Court order is that the Mathura Petition No. 385 of 1985 was transferred to Bombay and was numbered as M. J. Petition No. 76 of 1988 in the City Civil Court, Bombay, and is still pending final adjudicature. The application for restoration filed by the husband on the 4th December 1985 viz. Application No. 161 of 1985 in the Mathura Court was numbered as Misc. Petition No. 23 of 1988 in the City Civil Court, at Bombay. However, before the proceedings were so re-numbered pursuant to the order of the Supreme Court dated 15th December 1986, the wife had filed Notice of Motion No. 6849 of 1987 under S. 24 of the Hindu Marriage Act on the 15th October 1987, which was registered on the 31st December 1987 on which the impugned order has been passed by the learned trial Judge on 30th August 1989.
7. As indicated earlier, the wife had also filed a petition in the Bombay City Civil Court earlier for restitution of conjugal rights being M. J. Petition No. 1102 of 1985. Both the parties had taken out some proceedings for interim reliefs such as appointment of a Commissioner in respect of the bungalow at Goregaon, interim alimony pcndente lite in the petition filed by the wife at Bombay, as also for custody of the child by the husband. In March 1986, certain ad interim orders had been passed in those proceedings which need not be discussed here in details. Suffice it to say that on the 7th October 1986, in the petition filed by the wife for restitution of conjugal rights, the City Civil Court passed an order directing the husband to pay interim alimony to the wife at the rate of Rs. 1500/-per month for the period commencing from 1st March 1986 till October 1986 only. In the said Bombay Petition filed by the wife for restitution of conjugal rights, the husband in fact wanted to submit to a decree. On the 7th October 1986 the City Civil Court passed an order permitting the wife to withdraw the petition and dismissed the same for want of prosecution with no order as to costs. The exact order passed by the City Civil Court, Bombay, in the petition filed by the wife in Bombay is as under :--
"Petition allowed to be withdrawn and dismissed for want of prosecution, no order as to costs."
8. However, against the order granting the wife's application for interim alimony pending her own petition in Bombay, at the rate of Rs. 1500/- per month, the husband had filed revision application to this Court, being Civil Revision Application No. 131 of 1987, which was disposed of by this Court on 16th June 1989. This Court came to the conclusion that in view of the withdrawal of the main petition filed by the wife for restitution of conjugal rights, the civil revision application filed in this Court had become infructuous so far as the order of interim maintenance was concerned. It was pointed out to this Court that fresh matrimonial proceedings and interim application for maintenance were pending in the City Civil Court, meaning thereby that the petition transferred from Mathura to Bombay pursuant to the order passed by the Supreme Court and the notice of motion taken out by the wife on which the present impugned order has been passed. Regarding renewal of certain fixed deposits, this Court gave certain directions and disposed of Civil Revision Application No. 131 of 1987 on 16th June 1989 as having become infructuous. In between, there has been an exchange of letters between the parties, the husband asking the wife to come and live in the matrimonial home and the wife pointing out some difficulties in the way and, therefore, not accepting the husband's offer. Suffice it to say at this stage that in the petition filed by the husband in the Mathura Court, which was transferred to the Bombay City Civil Court, there are serious allegations alleging that the wife has illicit intimacy with other persons. There are serious allegations in Paras 28, 29 and 46 which are reproduced below for ready reference :--
"26. That even, during her stay at the petitioner's house, the respondent had been enjoying outside in the hotels and restaurants with her boy-friends without having the company of the petitioner. Once, after few months of the marriage, the petitioner's mother, while respondent was staying at petitioner's house at Bombay, saw that the respondent was kissing and embracing a boyfriend, who came to meet her in the absence of the petitioner. When the petitioner's mother objected the same, the respondent misbehaved her.
29. That when petitioner objected the respondent's going out on each and every day for hours together without the consent of the petitioner, the respondent told to the petitioner that she had illicit relations with some of her boy-friends before and after the said marriage and that since the petitioner was not of her liking and ambitions, she would not give the treatment and respect to the petitioner as of a husband and she could not leave her relations with her friends".
"46. That actually respondent is lady of loose and suspicious character, she is fond of fast modern life and enjoying freely the company of her boy-friends since her college time. Respondent had left her college-studies after marriage. Several times, the letters and telephone-calls of respondent's boy-friends reached at petitioner's house, which revealed her illicit relations with other persons. Besides this, the respondent was found to be talking her boy-friends on telephone. She was also found in embarrassing position with her friends. The petitioner and his mother warned and instructed respondent to desist from above conduct and to change her way of life. But the respondent did not care for the same. Actually, respondent wanted to command petitioner for not interfering in her free life and she never cared to listen and to show regards for petitioner desires and fulfil matrimonial obligations. The views and way of life of respondent is altogether different than average Indian wives. The conduct and acts of respondent have been causing persistence great mental agony, tortures, fatigue and discomforts etc. etc. to the petitioner. The acts and conducts of respondent have also caused to develop a serious inferiority-complex in the mind of the petitioner, which is very injurious for the petitioner's life."
9. It is true that in his letter dated 19th September 1986, the husband did call upon the wife to come and live with him. However, on the 14th October 1986 the wife wrote back pointing out the attitude of the husband's family members, the harassment of ill-treatment suffered by her in the matrimonial home, the unreasonable demands for further dowry and transfer of her property in the husband's name and the fact that baseless and scandalous allegations were made against her character which made it impossible for her to accept the husband's offer.
10. As stated earlier, the husband had filed the application for restoration in the Mathura Court on 4th December 1985. The original application is in Hindi where the husband categorically states that he was keen to pursue his petition for divorce and that its dismissal for default in the circumstances mentioned above was causing serious prejudice to him. It was on the 15th December 1986 that the Supreme Court directed the transfer of the Mathura Petition to the City Civil Court, Bombay. The husband's application for restoration dated 4th December 1985 was, thus, pending. Apparently, the Supreme Court was not at any time told that the husband did not want to pursue his petition in the Mathura Court or that he did not want to pursue his application for restoration filed in the Mathura Court. It was as late as on 10th June 1987 that a very cryptic but significant pursis had been filed by the husband in the City Civil Court, Bombay, which reads as under :--
"The above matter stands dismissed by the Mathura Court. The petitioner's application for restoration is pending but the petitioner does not press the said application, It is therefore prayed that the said application may be dismissed. This has reference to your letter dt. 18-4-1987 bearing No. C/2707 of 1987".
Apparently, the pursis is innocuously worded, but the intention is obvious viz. to prevent the wife from resorting to any remedy under S. 24 of the Hindu Marriage Act. As stated earlier, Notice of Motion No. 6849 of 1987, which is a motion taken out by the wife for relief under S. 24 of the Hindu Marriage Act was filed on the 15th October 1987, in the sense that it was tendered before the learned Principal Judge, though it was registered according to the rules in the City Civil Court on the 31st October !987. In the affidavit in support of the motion taken out by the wife, she has alleged how she was ill-treated and harassed by the husband and the members of his family and how her husband deserted her necessitating her filing the petition for restitution of conjugal rights in the City Civil Court, at Bombay. The wife then referred to the financial status of the husband, the businesses carried on by him, the assets held by him in the nature of the Petrol Pump business, motor garage, bungalow, shop, bank accounts, fixed deposits, and prayed for an order of interim alimony in her favour from the month of October 1987. She stated that she had no independent income whatsoever. She was then an ordinary housewife. It may be recalled that in the petition filed by the wife in the Cily Civil Court, at Bombay, the order for interim alimony was restricted to the period between 1st March 1986 and October 1986 only. The wife, therefore, claimed in the present Notice of Motion No. 6849 of 1987 interim alimony at the rate of Rs. 5500/- per month plus the expenses of litigation quantified at Rs. 35000/-.
11. The husband has filed his affidavit-inreply denying the allegations made by the wife. He has contended that, in the first place, he was not willing to prosecute his application for restoration of his petition. The husband categorically says that he has filed the pursis on the 10th June 1987 to the effect that he does not want to proceed with his application for restoration filed by him in the Mathura Court on the 4th December 1985. The husband, therefore, is reconciled to the fact that his petition for divorce was dismissed by the Mathura Court on 28th November 1985 though the returnable date was 29th November 1985. Between 4th December 1985, on which date the husband filed his application for restoration, and 10th June 1987, the date on which he filed the pursis, the Supreme Court has passed the order on 15th December 1986 transferring the Mathura Petition to Bombay. However, the husband is clear in his mind that he does not wish to prosecute his Mathura Petition at all, in the sense that he does not want to prosecute his application for restoration which was filed at Mathura. He, therefore, contends that the wife's Notice of Motion No. 6849 of 1987 is not maintainable in law. He then denies the allegation that he is a wealthy person. He denies that all the assets and properties are individually held by him, in the sense that some of these properties are held by his family members or held by him in partnership with them. He also pleaded that in respect of the petrol pump business in Bombay, he had ceased to be a partner with effect from 1st April 1989 under a deed executed on 2nd July 1989 under which nothing was paid to him in his capacity as an outgoing partner. The husband says that though he had a 30 per cent share in the said partnership business, on his retirement nothing was paid to him and all that was agreed was that the accounts had to be subsequently made up and his share was to be paid by the remaining partners, who were his other family members. On a query made by me to the learned counsel Shri Bhatia, appearing on behalf of the husband, he makes a statement today on taking instructions from the husband, who is present in the Court, that though the accounts have been settled and though he has been paid his dues, he does not remember what exactly has been paid to him under the said document dated 2nd July 1989. The husband then contended that in respect of some of the shop premises in Bombay the said premises were already sold to one Thakkar and he had received only about a lakh and half in respect of the said premises. He, therefore, disputed the quantum of the amount of interim alimony as also the expenses of the proceedings claimed by the wife.
12. After hearing the parties at length, the learned trial Judge came to the conclusion that, in the first place, the husband had not given any reason for not pressing the application for restoration and that the pursis filed by the husband on 10th June 1987 was clearly mala fide. The wife was consenting to the application for restoration being granted. At any rate, the Mathura Court had dismissed the main petition on the 28th November 1985 when the returnable date was 29th November 1985. Therefore, the matter was dismissed on the day when it was not supposed to be on board. This was because of the obvious mistake on the part of the Mathura Court. In the result, the learned Judge allowed the application for restoration that was filed on 4th December 1985 in the Mathura Court and which, on transfer to Bombay, was renumbered as Misc. Application No. 23 of 1988. The result of this order is that the pursis dated 10th June 1987 stood rejected and the learned trial Judge directed that the N. J. Petition No. 76 of 1988 (formerly. Mathura Petition No. 385/85) be restored for hearing on merits.
13. After having come to this conclusion in the first part of the impugned order dated 30th August 1989, the learned trial Judge went on to consider the merits of the claim of the wife under S. 24 of the Hindu Marriage Act and came to the conclusion that the husband was possessing substantial means in the nature of some business concern and properties in Bombay. He further came to the conclusion that there were false and baseless allegations made by the husband casting doubts upon the chastity of the wife. Relying upon the Judgment of this Court in the case of A. v. B, reported in 80 Bom LR 384, the learned trial Judge came to the conclusion that there would be a justifiable apprehension in the mind of the wife that it would be dangerous to live with the husband. Relying further upon the judgment of this Court in the case of Smt. Gangu Pundlik Waghmare. v. Pundlik Maroti Waghmare, , the learned trial Judge came to the conclusion that while dealing with the application under S. 24 of the Hindu Marriage Act. it would not be permissible to refuse to grant relief on the ground that there were allegations of matrimonial offence against the wife. It was held in the said case of Smt. Gangu Pundlik Waghmare that refusing to grant relief to the wife under S. 24 of the Hindu Marriage Act, on the ground that there were allegations against her in the main petition attributing a matrimonial offence to her. would be prejudging the issue and would not be in conformity with the objects of S. 24 of the Act. The learned trial Judge also referred to the two decisions viz. in the case of Madan Lal v. Mcena, ,
and in the case of Rishi Dev Anand v. Smt. Devinder Kaur, , and came to the conclusion that relief under S. 24 of the Hindu Marriage Act could be granted even when the application for restoration of the main petition was pending under O. 9, R. 4 of the Code of Civil Procedure.
14. On the quantum of the claim the learned trial Judge took into account the pleadings of the parties as also the documentary evidence produced by them and came to the conclusion that the retirement deed dated 2nd July 1989 was a false and bogus document and was also void for want of consideration. The learned trial Judge concluded that the husband had tried his level best, by making fraudulent and illegal attempts, to defeat the right of the wife and his son Vishal. He further concluded that the husband appeared to be an affluent person and that the income disclosed by him for the purpose of income-tax assessment hardly reflected the true state of affairs. The facts which were specially within the knowledge of the husband were not disclosed by him. He held that the income of the husband and his parents was about Rs. 50,000/- per month. In this view of the matter, the learned trial Judge directed the husband to pay a total amount of Rs. 4000/- per month, by way of maintenance pendente lite viz. Rs. 2500/- p.m. for the wife and Rs. 1500/- p.m. for the son Vishal for the period from 31st October 1987 till September 1989. For this period, at the rate of Rs. 4000/-p.m. the amount of maintenance works out to Rs. 92,000/- which was directed to be paid on or before 16th October 1989. The husband was further directed to pay the interim maintenance at the rate of Rs. 4000/- p.m. on or before 16th day of each month commencing from 16th November 1989. As far as the expenses of the proceedings were concerned, having regard to the fact that the petition was initially filed by the husband in the Mathura Court and was subsequently transferred to Bombay and heard repeatedly, the learned trial Judge directed the husband and to pay an amount of Rs. 20,000/- as against the claim of Rs. 35,000/- made by the wife. It is the correctness of this order which is being challenged by the husband in this civil revision application under S. 115 of the Code of Civil Procedure.
15. It must be stated at the outset that on this revision application being admitted, the husband has obtained an unconditional and blanket interim stay of the operation of the impugned order and the result today is that nothing has been paid either to the wife or even to the son under the impugned order. As mentioned above, apart from the maintenance at Rs. 4000/- p.m. for the period from 31st October 1987 to 30th September 1989, amounting to Rs, 92,000/-, a further sum of Rs. 20,000/- was directed to be paid for the expenses of the proceedings, thus totalling up to Rs. 1,12,000/-, Thereafter, from October 1989 till March 1992, for 30 months, at the rate of Rs. 4000/- p.m.. the amount would work out 10 Rs. 1,20,000/-. Thus, by the end of March 1992, the wife would be eligible to claim Rs. 2,32,000/- if the impugned order is to be upheld. Since, however, there is an unconditional stay obtained by the husband not only nothing is paid to the wife but nothing is paid even to the son whose parentage is admittedly not in dispute.
16. I have heard both the learned counsel viz. Shri Bhatia for the husband and Shri Wadhwany for the wife. As slated earlier, the matter was argued initially on Friday, the 13th March 1992, and thereafter on Tuesday, the 17th March 1992. Wednesday, the 18th March 1992 and today and a substantial part of this, period has been occupied by the learned counsel appearing for the husband. Unfortunately, despite all possible efforts the parties have not been able to reconcile their differences and I am left with no alternative but to decide the matter on merits.
17. Shri Bhatia for the petitioner-husband contended that, in the first place, the learned trial Judge erred in restoring his petition for divorce when he had filed the pursis on 10th June 1987 to the effect that he did not want to press his application for restoration filed on 4th December 1985. Shri Bhatia contended that the proceedings under S. 24 of the Hindu Marriage Act were entirely misconceived in the facts of the present case inasmuch as S. 24 contemplates a pending proceeding. According to the learned counsel, the petition for divorce was dismissed on 28th November 1985; the application for restoration was filed on 4th December 1985 which he had desired not be pressed by filing the pursis on 10th June 1987 and hence, there was no proceeding pending before any Court in which the application, viz. Notice of Motion No. 6849 of 1987 taken out by the wife could be, entertained. Without prejudice to the above contentions, the learned counsel further contended that assuming that the said divorce proceedings were pending, in the facts of the case, the proceedings were pending only for a day viz. 30th August 1989. He contended that it was only on the application for restoration being granted, under the very impugned order dated 30th August 1989, that the wife could have applied for expenses of the litigation and granting Rs. 20,000/- for proceedings which were pending for a day was disproportionate and uncalled for, Similarly, the relief of maintenance pendenlc lite could extend only to one day, viz. 30th August 1989. Thus, passing the order at the rate of Rs, 4000, -p.m. from October 1987 onwards was not at all permissible according to the learned counsel. He further contended that either on 15th October 1987 the day the motion was filed, or on 31st October 1987, the day on which it was registered, the wife could not have taken out any motion or proceedings under S. 24 of the Hindu Marriage Act. He also contended that in the very scheme of the provisions of the Hindu Marriage Act and the Hindu Adoptions and Maintenance Act. unless the wife makes out a case falling under S. 18(2) of the Hindu Adoptions and Maintenance Act, she would not be entitled to claim even interim alimony under S. 24 of the Hindu Marriage Act. In fact, Shri Bhatia contended that by virtue of the provisions of Section 4 of the Hindu Adoptions and Maintenance Act and in particular, in view of clause (b) of Section 4 of the said Act, the proceedings under section 24 of the Hindu Marriage Act would not be maintainable. According to the learned Counsel, any relief that could be granted under Section 24 of the Hindu Marriage Act must be subject to the provisions of Section 18(2) of the Hindu Adoptions and Maintenance Act. He further contended that on the question of quantum of maintenance also the order was wholly untenable. His grievance is that the learned Judge has erred in construing the true scope of the clauses of the retirement deed dated 2nd July, 1989 as also of the agreement dated 3rd April, 1989 in respect of the sale of the shop premises to Thakkar. His contention is that both, the deed of retirement dated 2nd July 1989 and the agreement dated 3rd April, 1989 in respect of the disposal of the shop to Thakkar, were genuine transactions. He criticised the learned Judge for his drawing an adverse inference against him and, therefore, contended that the amount of Rs. 4000/- p.m. was excessive and was not justified by the facts of the case. It was not disputed before me that the wife has no independent income sufficient for her support. She has just joined the legal profession last year.
18. As against this, Shri Wadhwany appearing for the respondent-wife contended that, in the first place, the conduct of the husband in filing the pursis on 10th June 1987 was wholly mala fide. He invited my attention to the pleadings of the husband in the Mathura Petition, the pleadings of the parties before the Supreme Court in Transfer Petition No. 64 of 1986, as also to the fact that when attempt were recently made by the Family Court Bombay, to bring about a reconciliation, the Roznamas dated 18th June 1990, and 21st August 1990 show that the said attempts have failed. Relying upon the allegations made, by the husband in the Mathura Petition, Shri Wadhwany contended that the wife was justified in living separate from the husband and demanding maintenance. I have already reproduced in Para 8 above the allegations that the husband has made against the wife and it is not necessary for me to repeat the same here. Shri Wadhwany then contended that even pending an application under Order 9, Rule 4 of the Code of Civil Procedure for restoration of Mathura Petition, the wife could initiate proceedings under Section 24 of the Hindu Marriage Act. He has invited my attention to three judgments, viz. Judgment of this Court in the case of Shri Ramesh H. Jadhwani v. Smt Savita Ramesh Jadhwani,reported in 3 MC 74; Rishi Dav Anand v. Smt. Devinder Kaur, and Madan Lal v. Meena, . Relying upon these authorities, he contended that it is well settled that even pending an application either under Rule 4 of Order 9, or Rule 9 of Order 9 or Rule 13 of Order 9 of the Code of Civil Procedure, a spouse is entitled to maintain an application under Section 24 of the Hindu Marriage Act. Replying to Shri Bhatia's contention that the proceedings were pending, at the best, for one day, viz. August 30, 1989, Shri Wadhwany contended that admittedly the wife was served with the Mathura Petition on 2nd November 1985; had taken steps to defend herself in the Mathura Court; had made arrangements for her appearance on 29th November 1985 and on learning that the Petition was dismissed on the prior day had even filed a caveat in the Mathura Court on 29th November 1985. He, therefore, contended that it would be fallacious to urge that the proceedings in this case were pending only for a day. He invited my attention to some of the documents to show that the caveat lodged by the wife on 29th November 1985 in the Mathura Court was served both on the husband in Bombay as also on his Counsel at Mathura. He also invited my attention to the pursis filed by the husband viz. the cryptic pursis dated 10th June 1987 wherein the husband himself referred to the fact that his application for restoration was "pending". In view of this, Shri Wedhwany contended that Shri Bhatia's contention that the proceedings were pending only for one day was whelly untenable in law.
19. Shri Wadhwany then contended Chat it is well settled that a party to the litigation cannot, by its withdrawal, deprive the other party of the advantage that has accrued to the other party. In support of this, he invited my attention to a Judgment of this Court reported in AIR 1925 Bom 425 and to a Judgment of the Supreme Court , and also to a judgment of the Karnataka High Court in the case of C. Sanniah v. Smt. Padma, .
He further cotnended that between 4th December 1985 when the husband applied for restoration, and 10th June, 1987 when he filed the pursis to the effect that he did not want to press his application for restoration. He had participated in a number of proceedings in the Bombay Petition filed by the wife for restitution of conjugal rights such as an application for appointment of the Commissioner for interim maintenance as also the husband's own application for custody of his son Vishal. In this view of the matter, it is contended by the wife that the filing of the pursis that he did not want to press his application for restoration was wholly mala fide and was meant to defeat the right and/or advantage accrued to the wife in the facts and circumstances of this case.
20. Having heard the learned Counsel at length and having considered the entire material on record, it is not possible for me to accept the contentions of Shri Bhatia. On the contrary, I am inclined to accept the contentions raised by Shri Wadhwany. My reasons are as under :
21. In the first place, I have no doubt that the proceedings under Section 24 of the Hindu Marriage Act can be initiated even during the pendency of the application either under Rule 13 of Order 9 or Rule 9 of Order 9 Or Rule 4 of Order 9 of the Code of Civil Procedure. In the case of Ramesh v. Savita, reported, in 3 MC 74 this Court was dealing with the question as to whether pending the application under Rule 13 of Order 9 the wife could maintain an application under Section 24 of the Hindu Marriage Act. The learned Chief Justice answered the question in the affirmative. Applying the same ratio and bearing in mind the object of the provisions contained in Section 24 of the Hindu Marriage Act, I have no hesitation in holding that even pending the application made by the husband under Order 9, Rule 4 of the Code of Civil Procedure, the wife can initiate proceedings under Section 24 of the Hindu Marriage Act. It should be borne in mind that, in general, the husband is bound to defray the wife's costs of the proceedings under the Act and to provide her with the maintenance and support pending disposal of the proceedings. Having regard to the object that is sought to be achieved by making provision for awarding maintenance pen-dente lite and for making provision for payment of expenses of proceedings, the expression "proceedings under the Act" appearing in Section 24 cannot be given a narrow and restrictive meaning.
22. Secondly, in the case of Rishi Dev Anand v. Smt. Devinder Kaur, it has been clearly held as under :--
"In the view that proceedings under O. 9, Rule 9 of the Code for restoration are proceedings under the Act, it can safely be held that proceedings for setting aside the ex parte decree are also proceedings under the Act".
I am in agreement with the view expressed in the said decision.
23. Thirdly, a reference may usefully be made in this behalf to the provisions of Section 21 of the Hindu Marriage Act which states that subject to other provisions contained in this Act, and to such rules as the High Court may make in this behalf, all proceedings under this Act, shall be regulated, as far as may be by the Code of Civil Proceedure, 1908. The Punjab and Haryana High Court had also an occasion to consider a somewhat similar question in the case of Madan Lal v. Meena . Though the question which directly arose
there was one of granting relief to the wife under Section 24 pending an application under Order 9, Rule 13 for setting aside the ex parte decree, referring to the object and the rationale of the provisions of Section 24 of the Hindu Marriage Act, it was held that to obviate against the financial handicap of a party to the litigation the provisions of Section 24 of the Act can be invoked even during the pendency of the application under Order 9, Rule 13 of the Code of Civil Procedure. Thus, having regard to the object of Section 24 of the Hindu Marriage Act, and having regard to the ratio of the above mentioned 3 cases, viz. the decision of this Court ,
and , I am of the view that the provisions of Section 24 can be invoked by a spouse even during the pendency of an application under Order 9, Rule 4 of the Code of Civil Procedure. In the facts of this case, therefore, the wife is entitled to initiate proceedings under Section 24 of the Act even during the pendency of the husband's application for restoration of his petition which was dismissed on 28th November 1985.
24. It is not without significance that the parties in this case have litigated at Mathura for a brief period; in the Supreme Court for some time; for quite a substantial period in Bombay City Civil Court and now in the Family Court at Bombay. As stated earlier, the Mathura Petition, containing wild and baseless allegations against the wife, was filed on 26th October 1985 but it was obviously erroneously dismissed on 28th November 1985 when the returnable date was 29th November 1985, the wife filed her caveat on 29th November 1985 and the husband lost no time in promptly applying for restitution on 4th December 1985. Even when the parties approached the Supreme Court, they reiterated their respective stand and it was only when the Supreme Court passed the order on 15th December 1986 that the Mathura Petition was transferred to Bombay. What is relevant, as stated earlier, is that between 4th December 1985 the date of filing of the application for restoration at Mathura, and 10th June 1987 -- the date of filing of the pursis in the City Civil Court at Bombay, the parties have consciously litigated and have contested several proceedings against each other -- including the wife's Petition filed in the Bombay Court for restitution of conjugal rights and the Supreme Court transfer petition. It is not possible to understand why the husband suddenly wanted to give up his petition which led to the filing of the pursis on 10th June, 1987. There is therefore, great substance in the contention raised on behalf of the wife that the pursis is filed mala fide.
25. In this behalf, a reference may be made to the decision of (his Court in the case of Tukaram Mahadu Tandel v. Ramachandra Mahadu reported in AIR 1925 Bombay 425. It is undoubtedly true that it was a partition suit and in the context of the facts in that case what has been observed at Page 426 is as under :
"But there are other and wider considerations which lead me to hold that the plaintiff could not have withdrawn so as to defeat the defendant's claim. It is relevant to point out that in a partition suit a defendant seeking share is in the position of the plaintiff and one plaintiff cannot withdraw without permission of another".
Similarly, the Supreme Court has in the case of R. Ramamurthi (dead) by L. Rs. v. Rajashwarrao, observed that at
Page 747 "if any vested right comes into existence before the prayer for withdrawal is made under Order 23, Rule I, the Court is not bound to allow the withdrawal" this was stated in the context of the fact that as soon as the shareholder applies for leave to buy at a valuation the share of the party asking for a sale under Section 3 of the Partition Act he obtains an advantage in that the Court is bound thereafter to order a valuation and after getting the same done to offer to sell the same to such shareholder at the valuation so made. It was further observed that, in such circumstances, the plaintiff cannot be allowed to withdraw the suit after the defendant gained or acquired the advantage or the privilage of buying the share of the plaintiff in accordance with the provisions of Section 3(1). The Supreme Court has in Para 9 onwards referred to the above referred to Bombay decision in Tukaram Mahadu Tandel's case, reported in AIR 1925 Bom 425.
26. Similar, the Karnataka High Court has, in the case of C Sannaiah v. Smt. Padma , held that in proceedings
filed under the Hindu Marriage Act for divorce or judicial separation or for restitution of conjugal rights, the respondent in addition to opposing the claim made by the petitioner, is entitled to make a counter-claim for any relief under the Act on the ground of petitioner's adultery, cruelly or desertion. It has been held that such a claim by the wife in an application by the husband for restitution of conjugal rights is a counterclaim within the meaning of Section 23A of the said Act which should not be allowed to be prejudiced by the withdrawal of the main petition by the husband. 1 am, therefore, in agreement with the submissions of Shri Wadhwany that firstly, pending the application made by the husband for restoration undcr Order 9. Rule 4 of the Code of Civil Procedure, the wife can make an application for interim alimony under Section 24 of the Hindu Marriage Act and, secondly, that it would not be permissible for the Court to allow the husband to withdraw his application for restoration so as to adversely affect the wife's remedy under Section 24 of the Act. As held by the Supreme Court in R. Ramamurthi Aiyar's case (supra) and by this Court in Tukaram Mahadu Tandel's case (supra) the Court may refuse to permit withdrawal to the plaintiff where it would result in depriving the defendant of an advantage accrued to him her in the proceedings.
27. The next contention of the Counsel on behalf of the wife that the withdrawal is not bona fide is clearly borne out by the facts and circumstances of the case. Though 1 am exercising powers of revision, under Section 115 of the Code of Civil Procedure, both the learned Counsel have taken me through some of the correspondence on record and pleadings in different proceedings which leave no manner of doubt whatsoever that the husband's filing the pursis on 10th June 1987 is an act which is far from bona fide and clearly smacks of mala fides. As mentioned earlier, not only that no steps were taken between 4th December, 1985 and I0th June, 1987, but even subsequently when the proceedings were resumed in the Family Court. Bombay. pursuant to their being transferred from the City Civil Court to the Family Court under the new enactment, the attempts to bring about reconciliation have failed. This is clear from the Roznama of the proceedings dated 18th June, 1990 and 21st August 1990 produced before me. The said Roznama is reproduced below for ready reference :
18-6-90
Before the Court.
The petitioner is present.
Respondent is also present.
Notice issued to the respondent is
returned unserved with remark that
he was not found there. Both parties
are referred to the Marriage Coun-
sellor. Mrs. Bhat for reconciliation.
Adjd. for report of M.C.
Sd/-
Judge 21-6-90
21-8-90
Before the court.
Both petnrs are present. Report of
Marriage Counsellor is received.
Reconciliation is not possible.
Adjd. for W.S,
Sd/-
Judge 9-10-90
28. The result of the above is very obvious. The husband has first approached the Court at Mathura making wild and baseless allegations against the wife. The Supreme Court transferred the matter from Mathura Court to Bombay City Civil Court. The proceedings got transferred to the Family Court from the City Civil Court by virtue of the Family Courts Act. 1984. The proceedings in the Family Court show that the parties are not able to reconcile their differences. Attempts made in this Court also show that the parties are not able to reconcile their differences. If this be so, it is difficult to understand how the husband's pursis dated 10th June, 1987 can be construed as a bona fide act. Either the parties reconcile their differences and live together or the petition filed by husband for divorce has to be disposed of on merits.
29. Shri Bhatia did suggest that in view of the provisions of clause (b) of Section 4 of the Hindu Adoptions and Maintenance Act, 1956, the proceedings under Section 24 of the Hindu Marriage Act, 1955, were not at ail maintainable. It was tried to be contended that an application for maintenance must necessarily fall under Section 18 of the Hindu Adoptions and Maintenance Act, 1956 and hence, the proceedings under Section 24 of the Hindu Marriage Act would be hit by clause (b) of Section 4 of the Hindu Adoptions and Maintenance Act. The said Section 4 reads as under :--
"4. Overriding effect of Act -- Save as otherwise expressly provided in this Act. -
(a) any text, rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act;
(b) any other law in force immediately before the commencement of this Act shall cease to apply to Hindus in so far as it is inconsistent with any of the provisions contained in this Act".
is not possible to accept the contention of Shri Bhatia. There is no provision in the Hindu Adoptions and Maintenance Act for granting maintenance pendente lite and expenses of proceedings as provided for in Section 24 of the Hindu Marriage Act 1955. Hence, I do not find anything in the scheme of the provisions of Section 24 of the Hindu Marriage Act which is inconsistent with the provisions of the Hindu Adoptions and Maintenance Act so as to attract the bar of clause (b) of Section 4 of the Hindu Adoptions and Maintenance Act. Undoubtedly, if there were to be any other law in force immediately before the commencement of the Hindu Adoptions and Maintenance Act 1956, it would cease to apply to Hindus in so far as it is inconsistent with any of the provisions contained in the Hindu Adoptions and Maintenance Act. However, I do not find any inconsistency between the provisions of Section 24 of the Hindu Marriage Act and the provisions of Section 18 of the Hindu Adoptions and Maintenance Act. In my view, therefore, the argument based on the provisions clause (b) of Section 4 of the Hindu Adoptions and Maintenance Act has no force. The learned trial Judge has rightly held that having regard to the wild and baseless allegations made by the husband in his Petition for divorce filed in the Mathura Court, the wife could be justified in entertaining an apprehension that it would be dangerous for her to live with the husband. In this behalf, I am bound by the decision of the Division Bench of this Court in A. v. B, reported in 80 Bombay LR 384, referred to above, Similarly, in view of the decision of this Court in Smt. Gangu Pundlik Waghmare v. Pundlik Maroti Waghmare , it would not be
permissible for me to refuse to award maintenance pendente lite and the expenses of the proceedings to the wife merely because there are wild and baseless allegations made by the husband against the wife. In saying so. I cannot lose sight of the fact that the husband now does not even want to prosecute his Petition for divorce; meaning thereby that he does not even want to justify or prove the allegations made by him in the Petition for divorce.
30.Coming to the question of the amount of maintenance, it is no doubt true that Shri Bhatia for the husband did make a grievance both regarding the amount of maintenance pendente lite as also in respect of the expenses of the proceedings. As stated earlier, Shri Bhatia's submissions were two-fold : In the first place, he contended that the proceedings were pending for a day only, viz. 30th August 1989 and hence, maintenance pendente lite and expenses of the proceedings could be granted for a day only. Secondly, he contended that the quantum was excessive having regard to the facts and circumstances of the case.
31. As far as the first contention of Shri Bhatia is concerned, it is clearly misconceived, to say the least. The proceedings for restoration were initiated as far back as on 4th December 1985 in respect of the petition which was filed on 26th October 1985, served on the wife on 2nd November 1985 but was erroneously dismissed for default on 28th November, 1985. The proceedings did appear before the learned Principal Judge, City Civil Court, Bombay, on different dates. Once it is held that the application under Order 9, Rule 4 of the Code of Civil Procedure is also a proceed ing contemplated under Section 24 of the Hindu Marriage Act by virtue of the provisions of Section 21 of the Hindu Marriage Act as discussed above, it is difficult to accept the contention of Shri Bhatia that the proceedings in this case were pending only for one day. What the learned Counsel tried to contend was that since the application for restoration was granted on 30th August 1989 under the impugned order and since the application of the wife under Section 24 disposed of on the same day, viz. 30th August 1989, the proceedings initiated by the wife under Section 24 of the Act were the proceedings pending in the City Civil Court, Bombay, only for one day. I am afraid, it is not possible to accept this far-fetched contention raised on behalf of the husband.
32. Secondly, on the quantum of maintenance also, it is not possible to escape the impression that the documents dated 2nd July 1989 and 3rd April, 1989 were clearly got up for the purpose of evading the claim of the wife in the proceedings under Hindu Marriage Act. As far as the retirement deed dated 2nd July, 1989 is concerned, the learned trial Judge has commented upon the fact that the husband -- a partner in a Petrol Pump business in Bombay -- was apparently made to retire without anything having been paid to him in respect of his 30% share in the assets and profits of the Firm. In that deed, it is stated that on the accounts being settled, the moneys would be paid. I have referred above to the inability of Shri Bhatia to make a clear statement even at this stage as to what amount has been paid to the husband. As stated earlier, on taking instructions from his client, who is present in the Court, all that Shri Bhatia admits is the fact that the husband's claim has been settled but he is not in a position to state as to how much amount, even approximately, has been paid to the husband under the retirement deed dated 2nd July, 1989. At any rate, it is not possible to hold that the deed of retirement dated 2nd July 1989 reflects the true state of affairs. It is not in dispute that the other partners in respect of the said petrol pump business are none else than the other members of the family of the husband. Similarly, in respect of the Agreement dated 3rd April, 1989 regarding the sale of the shop to Thakkar, it is not possible to accept the husband's contention. The learned Judge has referred to the pleadings in details and has rightly come to the conclusion that the husband has not disclosed the true state of affairs in respect of his income. There are certain facts specially within his knowledge which he has refused to disclose. The learned Judge has referred to a decision of the Gujarat High Court , Maganbhai Chhotubhai Patel v. Maniben
where it has been held that where the husband's denial was found to be evasive and the documents regarding his income were specially within his knowledge, their non-disclosure would justify raising of an adverse inference in the facts of a given case. I may also refer to the observations of the Supreme Court in the case of Dr. Kulbhushan Kunwar v. Smt. Raj Kumari, , where it has been
observed, in Para 17, that the quantum of maintenance depends upon gathering together of all the facts of the situation, the amount of free estate the past life of the married parties and the families, a survey of the conditions and necessities and rights of members, on a reasonable view of change of circumstances possibly required in the future, regard being, of course, had to the scale and mode of living, and to the age, habits, wants and class of life of the parties. The Supreme Court quoted with approval the observations of the Privy Council in the case of Mt. Ekradeshwari v. Homeshwari, reported in AIR 1929 PC 128, where the Board had to deal with the case of a widow of a deceased in the junior line of the well-known Darbhanga family in Bihar. Both the learned Counsel stated before me that in this case, the wife has now completed her Law education and has started practice last year. In view of these facts & circumstances, I do not think any case is made out for interference with the quantum fixed either for the maintenance or for the expenses of the proceedings. In my view, this is a clear case where the wife had no independent income sufficient for her support and the necessary expenses of the proceedings contemplated by the provisions of Section 24 of the Hindu Marriage Act. The husband has not come out with a definite case about his income and has merely tried to find fault with the finding of the learned trial Judge. Indeed, it is not even suggested that the wife who has now joined the legal profession last year, has independent income sufficient for her support and for the necessary expenses of the proceedings. Thus, having regard to the income of the husband and the position of the wife, I find no reason to interfere with the findings of the learned trial Judge.
33. In view of the above, my answers to the two questions framed in Para 3 above are as under :--
(i) Pending an application under Order 9, Rule 4 of the Code of Civil Procedure, 1908, for restoration of the petition filed by the husband for divorce, the wife can initiate proceedings under Section 24 of the Hindu Marriage Act. 1955, for maintenance pendente lite and expenses of proceedings;
(ii). The husband cannot be allowed to withdraw his application for restoration under Order 9, Rule 4 of the Code of Civil Procedure so as to defeat the wife's application under Section 24 of the Hindu Marriage Act.
34. I am hearing an application for revision under Section 115 of the Code of Civil Procedure against the order passed in the proceedings under Section 24 of the Hindu Marriage Act. I do not think, any case is made out for reducing either the quantum of maintenance pendente lite or quantum of expenses of the proceedings awarded by the learned trial Judge. In the result, I find no substance in the grievance of Shri Bhatia either in respect of the amount of maintenance pendente lite awarded at the rate of Rs. 4000/- per month from October, 1987 onwards or the amount of Rs. 20,000/- awarded to the wife for the expenses of the proceedings in the peculiar facts and circumstances of this case. There is, thus, no merit in this civil revision application and the Ruie is, therefore, discharged.
35. Having regard to the fact that the matter has been contested in this Court from time to time and was heard for quite some length of time even before an another learned Judge and now before me, 1 think, interests of justice would be met by directing the husband to pay an amount of Rs. 5000/- towards the costs of this Civil Revision Application. 1 must mention here that an amount of Rs. 2,12,000/- has become due to the wife towards the maintenance for the period from 3tst October, 1987 to 31st March, 1992 at the rate of Rs.4000/- p.m. plus Rs.20,000/-granted to her for the expenses of the proceeding. Unfortunately, nothing has been paid so far for the period from 31st October, 1987.
36. There are the Civil Applications which are pending in this C.R.A., Civil Application No. 3932 of 1990, was filed by the wife for the purpose of getting the interim order vacated, viz. interim order dated 19-10-1989 passed by this Court in this C.R.A. granting unconditional stay of, the order of maintenance in favour of the wife and son. There is also a prayer in this C. A. No. 3932 of 1990 for grant of an amount of Rs. 10,000/-towards the costs of the litigation in this Court viz. C.R.A. No. 811 of 1980 and C. A. No. 3932 of 1990. In view of the order passed by me discharging the Rule, in C.R.A. No. 811 of 1989 and awarding the wife a sum of Rs. 5000/- towards the costs of the C.R.A., no further orders are necessary in C.A. No. 3932 of 1990. Accordingly, the said C.A. stands dismissed of with no orders.
37. There is another Application, being C.A. Stamp No. 30439 of 1991, also filed by the wife where also prayers are made for fixing a date of hearing and for grant of the reliefs in the nature of interim payment by way of maintenance and/or legal expenses. In view of the order passed above, Shri Wadhwany for the wife seeks leave to withdraw the said C.A. Accordingly, leave is granted C.A. Stamp No. 30439 of 1991 is allowed to be withdrawn.
38. At this stage, Shri Bhatia, the learned Counsel for the husband makes two submissions. Firstly, he prays for stay of the operation of the order passed by me today since the husband wants to approach the Hon'ble Supreme Court and also on the ground that he is not in a position to pay. Secondly, he also prays for liberty to his client to withdraw his main Petition for divorce which is now transferred to the Family Court at Bombay in view of the Family Courts Act, 1984. As far as the first prayer for stay of operation of this order is concerned, in my view, the order in favour of the wife and son is in the nature of a money decree. Unfortunately, nothing has been paid to the wife and the son from October, 1987 though Rupees 2,12,000/- are due by way of maintenance alone and the amount payable for expenses of proceedings fixed at Rs. 20,000/-, totalling to Rs. 2,32,000/-. Hence, if the husband is to be granted indulgence of slay of operation of this order, it would be necessary in the interests of justice that he deposits in the Family Court, Bombay, a sum of Rupees 1,00,000/-(Rs. One Lakh only) within a period of two weeks from today. Therefore, on the condition that the husband deposits in the Family Court, Bombay, a sum of Rupees 1,00,000, (Rs. One Lakh) on or before Friday, the 3rd April, 1992, the order passed by me today will not be operative till Monday, the 20th April 1992. It is made clear that in the event of the husband failing to make deposit of the amount of Rs. 1,00,000/- (Rs. One Lakh only) in the Family Court on or before Friday, the 3rd April, 1992, the wife is free to proceed in accordance with law after 3rd April, 1992.
39. It is further made clear that in the event of the husband depositing the amount of Rs. 1,00,000/- (Rs. One Lakh only) in the Family Court, at Bombay, on or before 3rd April 1992, the wife would be entitled to withdraw the said amount unconditionally.
40. The second submission of Shri Bhatia is for permission to withdraw the main Petition for divorce filed by him and which is now pending in the Family Court, Bombay, without prejudice to his rights and contentions to agitate the matter further in the Supreme Court. While 1 cannot prejudice, the party's rights to agitate the matter in the higher forum, viz. before the Hon'ble Supreme Court, in the facts and circumstances of this case and for the reasons mentioned earlier, I am rejecting the application made by Shri Bhatia for permission to the husband to withdraw the M. J. Petition which is now pending before the Family Court, Bombay.
41. Shri Wadhwany Prays that in the event of the husband approaching the Hon'ble Supreme Court he should be directed to give to the wife one week's notice. Accordingly, the husband is directed to give a notice of 72 hours to the wife of his intention to approach the Supreme Court.
42. Order accordingly.
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