A.V. SAVANT, J. :---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 section 24 of the Hindu Marriage Act, 1955. The petitioner-husband seeks to challenge the order dated 30th August, 1989 passed by the City 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 section 24 of the Hindu Marriage Act. Section 24 of the said Act reads as under:-

"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-section (2) of section 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, 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 any determination, viz.

(i) Whether 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, can the wife initiate proceedings under section 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 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?

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 or 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 1985 for restitution of conjungal 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 mat