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Jharkhand High Court · body

2019 DIGILAW 106 (JHR)

Purnima Sharma, w/o Sri Rajesh Sharma, d/o Sri Vishwanath Sharma v. Rajesh Sharma, s/o Sri Anandi Sharma

2019-01-11

SUJIT NARAYAN PRASAD, SUJIT NARAYAN PRASAD

body2019
JUDGMENT : 1. This writ petition has been preferred under Article 227 of Constitution of India wherein the order dated 03.07.2018 has been challenged by which the petition filed under Section 9 of the Hindu Marriage Act has been dismissed as withdrawn. 2. Brief facts of the case of the petitioner is that an application has been filed by the respondent-husband under Section 9 of Hindu Marriage Act for restitution of conjugal right. While the same was pending, an application under Section 24 of Hindu Marriage Act was filed. The respondent-husband has also filed application under Section 13(1)(1-A) of the Hindu Marriage Act, 1955. It seems that in the changed circumstances, i.e. after filing of the application under Section 13(1)(1-A) of Hindu Marriage Act, the respondent-husband has filed an application for withdrawal of Matrimonial Suit No.04 of 2017 filed under Section 9 of Hindu Marriage Act which has been allowed to be withdrawn by dismissing it against which this writ petition has been filed under Article 227 of Constitution of India. 3. Mr. Saibal Kumar Laik, learned counsel for the petitioner submits that allowing the respondent-husband to withdraw the aforesaid Matrimonial Suit No.04 of 2017 is not proper since the application filed by the petitioner-wife under Section 24 of the Hindu Marriage Act was lying pending therein. 4. This Court, after hearing learned counsel for the petitioner and going across the fact brought on record by affidavit as also the impugned order, has found that respondent-husband has filed application under Section 9 of Hindu Marriage Act for restitution of conjugal rights wherein application under Section 24 of Hindu Marriage Act was filed by the petitioner-wife. The respondent-husband, thereafter filed an application under Section 13(1)(1-A) of the Hindu Marriage Act, 1955. When the conciliation failed, he insisted for disposal of the Matrimonial Suit No.04 of 2017. The respondent-husband, thereafter has filed application for withdrawal of the Matrimonial Suit No.04 of 2017 which has been allowed to be withdrawn which is under challenge in this writ petition. 5. It is settled that if any application is being filed by the petitioner/plaintiff, if he does not intend to press it, the court of law cannot force to pursue the litigation. 6. 5. It is settled that if any application is being filed by the petitioner/plaintiff, if he does not intend to press it, the court of law cannot force to pursue the litigation. 6. The trial court, after considering aforesaid aspect of the matter, has allowed the application for withdrawal of Matrimonial Suit No.04 of 2017 and therefore, in the considered view of this Court, no illegality has been committed. 7. So far as prejudice part of the petitioner is concern, the petitioner is not going to be prejudiced for the reason that application under Section 13(1)(1-A) of the Hindu Marriage Act, 1955 is lying pending in which the petitioner can well file application under Section 24 of the Hindu Marriage Act. 8. In view thereof, this Court is not inclined to interfere with the impugned order under revisional jurisdiction conferred to this Court under Article 227 of Constitution of India. 9. Accordingly, this writ petition stands dismissed. 10. However, liberty is reserved with the petitioner to file application under Section 24 of Hindu Marriage Act, 1955, if she so wishes.