Court: Calcutta High Court
Bench: JUSTICE Harish Tandon
Siddhartha Chatterjee (Dr.) Vs. Adrita Chatterjee On 1 October 2015
Law Point:
Hindu Marriage Act, 1955 — Section 26 — Civil Procedure Code, 1908 — Order 23 Rule 1 — Custody of children — Withdrawal of suit by wife — Would not take away visitation rights of husband provided under provision — Section 26 of HM Act, sufficiently takes care of interest of petition even after suit is withdrawn.
JUDGEMENT
1. This revisional application is directed against order no. 35 dated April 18, 2015 passed by the learned Additional District & Sessions Judge, Fast Track Court, Durgapur in Matrimonial Suit No. 20 of 2013 by which an application for withdrawal of the suit under Order XXIII Rule 1 of the Code of Civil Procedure is allowed. The husband is challenging the said order, as withdrawal of the suit shall defeat his right to visit the child. The wife was granted custody by way of an interim order on an application under Section 24 of the Hindu Marriage Act (hereinafter referred to as the said Act).
2. According to the petitioner, the order recognizing his visitation right was challenged before this Court by the wife but could not emerge successful therefrom. The Special Leave Petition filed before the Supreme Court was subsequently withdrawn. The only point urged before this Court is that the Court should not permit the withdrawal as it would frustrate the order passed on an application under Section 26 of the Hindu Marriage Act. Before proceeding to deal with the aforesaid point, it would be relevant to quote the provision contained under Section 26 of the Hindu Marriage Act which runs thus:-
26. Custody of children. – In any proceeding under this Act, the court may, from time to time, pass such interim orders and make such provisions in the decree as it may deem just and proper with respect to the custody, maintenance and education of minor children, consistently with their wishes, wherever possible, and may, after the decree, upon application by petition for the purpose, make from time to time, all such orders and provisions with respect to the custody, maintenance and education of such children as might have been made by such decree or interim orders in case the proceeding for obtaining such decree were still pending, and the court may also from time to time revoke, suspend or vary any such orders and provisions previously made:
3. The bare reading of the aforesaid provision manifests that in any proceeding under the said Act, the Court may from time to time pass such interim orders or make such provision in the decree as it deem just and proper with respect to the custody, maintenance and education of the children consistently with their wishes and may, after the decree, upon an application by petition for the purpose, make from time to time such orders and provisions with respect to the custody, maintenance and education of such children as might have been made by such decree or interim order.
4. Section 26 of the said Act, therefore, can be pressed in action if any proceeding is instituted under the said Act and apart from an interim order passed from time to time the provision can be made at the time of passing the decree obviously after taking into account the welfare of the child and the rights of the parties to have his or her custody.
The aforesaid provision is not the sole Section under which the father or the mother can claim the custody of the child as Guardian and Wards Act takes care of such right so the Hindu Minority and Guardian Act, 1956.
5. Section 26 of the Hindu Marriage Act was introduced in the statute book so that a proceeding instituted under the said statute may give complete and effective relief to the litigants. The opening sentence of Section 27 of the said Act makes it clear that its applicability is restricted when any proceeding is instituted under the said Act and not independent thereof.
6. A litigant who files a suit is a dominus litis and can chose to abandon the claim either in full of in part or can also withdraw the same and such right is recognized under Order XXIII Rule 1 of the Code of Civil Procedure. Mr. Roy, the learned Advocate for the petitioner is very much vocal in saying that the withdrawal of the suit would amount to denial of the right recognized at an interlocutory stage and shall frustrate the said order. In support of the contention that the withdrawal is not automatic but the Court should apply its judicial mind before granting permission to the plaintiff to withdraw the suit, he relies upon a judgment of the Division Bench of this Court rendered in the Case of Uday Paul v. Mira Paul, reported in 1993 (2) CLJ 437. Being inspired by the observations made by the Supreme Court in the case of Sneh Gupta v. Devi Sarup & Ors., reported in II (2009) SLT 563=II (2009) CLT 84 (SC)=(2009) 6 SCC 194, Mr. Roy would contend that the Court should not permit a party to withdraw the suit after obtaining the benefit from the interlocutory orders.
7. There is no quarrel to the settled proposition of law that the Court shall not permit the plaintiff to abandon his suit or a part of the claim or to withdraw the same without requiring the Court to apply its judicial mind. It would be more onerous on the part of the Court to consider when the withdrawal is sought with liberty to institute a fresh suit on the selfsame cause of action, to record the reasons under Sub-Rule (3) Rule 1 of Order XXIII of the Code.
8. Order XXIII Rule 1 of the Code contemplates two kinds of situations – one relates to the abandonment of whole or a part of the claim by the plaintiff and the other relates to withdrawal of the suit. Though both the expressions used in the said provision connotes identical consequences but requires different considerations by the Court. Prior to the amendment having brought in the year 1976, the expression ‘abandonment’ was not incorporated in Order XXIII Rule 1 of the Code and there was only one expression ‘withdrawal’ was used.
9. The entire provision as it stood prior to the amendment contemplates two kinds of withdrawal – one absolute withdrawal and second, qualified withdrawal. Because of certain confusions with the interpretation of the aforesaid expressions the word ‘abandonment’ has been introduced to achieve the same purpose of ‘absolute withdrawal’ as distinguished from ‘qualified withdrawal’. Though the expression ‘withdrawal’ is used in the application filed by the wife, but the meaningful reading or the averments made therein leaves no doubt that she wanted to abandon the suit. Sub-Rule (4) of Rule 1 of Order XXIII makes it clear that in case of an abandonment, the Court shall impose costs against the plaintiff who shall thereafter be precluded from instituting a fresh suit in respect of such subject matter or such part of the claim.
10. However, it would be different when the withdrawal is sought assigning a ground with the leave to file a fresh proceeding on the same subject dispute. The support can be lend from the judgment of various Courts to the proposition that the Rule does not require any permission for withdrawal or abandonment of the claim under Order XXIII Rule 1 of the Code, viz., Yeshwant Govsardhan Saraf v. Totaram Avasu Firke & Ors., AIR 1958 Bom. 28, Mahadkar Agency & Anr. v. Padmakar Arhanna Shetty, AIR 2003 Bom. 136.
11. The Division Bench in the case of Uday Paul (supra) was considering a case where an application under Section 24 of the Hindu Marriage Act was taken out by the wife for maintenance as the said provision can only be invoked if a proceeding is instituted under the said Act. An application for withdrawal was taken out and the Court thought it fit that such application shall be considered after the disposal of an application under Section 24 of the Hindu Marriage Act. The said order was impugned before the Division Bench. The Division Bench held if an application under Section 24 of the Hindu Marriage Act is taken out claiming alimony pendente lite, the Court should not permit the husband to withdraw the suit and frustrate the said application for being considered but must postpone the hearing of an application for withdrawal after the disposal of the said application.
12. The Apex Court in case of Sneh Gupta (supra) was considering the point whether the withdrawal under Order XXIII Rule 1 can be permitted at the appellate stage. In a suit instituted before the appellate Court, it was held by the Trial Court that ‘Hebanama’ was obtained by practicing fraud and such judgment and decree was assailed before the appellate Court. Subsequently, compromise was effected amongst the parties and on the basis of the compromise the suit was sought to be dismissed as withdrawn.
13. In the backdrop of the aforesaid factual matrix, the Apex Court held that the Court has a duty to prevent injustice to any of the parties to the litigation. It is further held that a person cannot be permitted to withdraw the suit after it acquires a privilege. The rights which have come to be vested in the parties on the strength of a decree passed in the suit cannot be taken away by the withdrawal of the suit at the appellate stage. Further in paragraph 35 of the said judgment, the Apex Court categorically held that right to withdraw a suit in the suitor would be unqualified, if no right has been vested in any other party.
14. There is no dispute to the proposition that the plaintiff having suffered a decree in the Trial Court cannot seek the withdrawal of the suit before the appellate Court as the right accrued to the other side should not be allowed to be defeated by permitting the withdrawal of the suit. It is equally true that a person taking advantage from the orders passed by the Court in the proceeding shall not be permitted to withdraw the suit unconditionally as the Court can impose costs and may pass appropriate order as the circumstance warrants.
15. The right under Section 26 of the Hindu Marriage Act for custody of the minor though can be invoked in a proceeding under the said Act but requires a final adjudication and a provision at the time of passing the decree. A litigant cannot be forced to continue with the litigation if he or she chooses not to do as any nontaking of steps in the suit may invite the dismissal of the suit for default. It is pointed out by Mr. Roy, that an application under Section 26 of the Hindu Marriage Act has already been disposed of finally permitting the husband to visit the child at periodical interval.
16. Looking at the provisions contained under Section 26 of the Act, the Court can pass interim orders from time to time and shall finally made such provision in the decree as it may deem just and proper relating to the custody, maintenance and education of the minor children and shall remain survive after the decree as if the proceeding is still pending. The provisions contained under Section 26 of the said Act sufficiently takes care of the interest of the petitioner even after the suit is withdrawn.
Therefore, this Court does not find that it would take away his right of visitation provided under the said provision. From whichever angle this Court finds, it does not appear that any prejudice would be caused to the petitioner if the suit is permitted to be withdrawn by the wife.
17. The order impugned, therefore, does not require any interference.
The revisional application is dismissed. No order as to costs.
DISCLAIMER: The above judgement is posted for informational purpose ONLY. Printout/ Copy from this website are not admissible citation in the Court of Law. For a court admissible copy contact your advocate.
You may contact me for consultation or advice by visiting Contact Us
Leave A Comment