V. D. GYANI, J. ( 1 ) HEARD Shri Goyal, learned counsel for the petitioner and Shri Garg, learned Counsel, who appears on show cause notice of I. A. No. 2332/87. ( 2 ) THE question which arises for consideration in this revision petition is, whether an interlocutory order made in a proceeding under S. 9 of the Hindu Marriage Act, can be executed on withdrawal and termination of the proceedings. The petitioner filed a suit under S. 9 of the Hindu Marriage Act for restitution of conjugal rights. In the course of proceedings, an application under S. 26 of the Hindu Marriage Act, for entrusting the custody of her son, Pawankumar, aged about 4 years, was made. By order dt. 8-5-87, the trial Court directed that custody of Pawankumar be restored to the respondent Sangita, mother of the child. After this order was made on 18-6-87, the petitioner moved an application under O. 23, C. P. C. for withdrawal of the suit. Trial Court permitted the withdrawal on 14-7-87. ( 3 ) ON 22-7-87, the respondent made an application for execution of the interim order for custody of Pawankumar, her son, passed on 8-5-87. It was registered as execution case No. 3/87. Trial Court on 25-7-87, passed the impugned order issuing a warrant against the petitioner. Shri Goyal, learned counsel appearing for the petitioner, contended that interim order for custody could not be enforced after withdrawal of the case. He also pointed out that even according to the respondent, the custody prayed for, was only interim till the decision of the suit and the suit having been withdrawn, the trial Court could not have passed the impugned order. Shri Garg, learned Counsel appearing for the respondent, on the other hand, submitted that interlocutory orders made in such proceedings can be executed even after their termination in withdrawal. ( 4 ) READING S. 26 of the Hindu Marriage Act, (hereinafter referred to as 'the Act') it gives ample powers to the Court to pass interim orders from time to time and even to make such provision in the decree as it deems just and proper, with respect to the custody, maintenance and education of the minor children. The Court has power to alter the decree and make such orders with respect to custody, maintenance, and education of the children.
The Court has power to alter the decree and make such orders with respect to custody, maintenance, and education of the children. Although, the proceedings were pending even after passing of the decree, the Court has power to revoke or suspend any order previously made. ( 5 ) NEEDLESS to add that in all circumstances, the paramount consideration is, as it ought to be the welfare of the child, it would not be proper nor desirable to view this essentially humane matter in the iron frame work of law. The wording of S. 26 of the Hindu Marriage Act is so widely worded as to take care of such a situation as arising in this case. ( 6 ) S. 115, C. P. C. , has been invoked by the petitioner. He must, therefore, show that if the impugned order is allowed to stand how would it occasion failure of justice or cause irreparable injury to the petitioner. In absence of any such allegation, this revision petition cannot stand. The Madras High Court in P. P. Krishnan v. J. Thailambal (M. L. J. Vol. I, 1969, p. 328) has held that the husband against whom an order u/s. 24 of the Hindu Marriage Act has been made for payment of interim maintenance and necessary expenses cannot be allowed to wipe his liability after passing of the order by choosing to withdraw the petition. Such an order u/s. 24 of the Hindu Marriage Act does not become inexecutable, but as stated above, S. 26 of the Act is wide in its import and does not admit of a narrow construction so as to render inexecutable the interim orders made during the proceeding or the proceeding itself, being withdrawn or otherwise, came to an end. Shri Goyal, learned counsel appearing for the petitioner submitted that prayer for custody of Pawankumar was intended for interim period during pendency of the petition and not beyond that. As the Court has power to modify any interim order made under S. 26 of the Act, even after passing of the final order, the fact that custody as prayed for was only up to the pendency of the petition, is of no consequence. This petition fails and is accordingly dismissed. Petition dismissed. .