Order 23, Rule 1 of the Civil Procedure Code applies to proceedings under Section 9 of the Hindu Marriage Act, and a petitioner who withdraws a previous petition for restitution of conjugal rights without obtaining leave of the court is precluded from filing a second petition.

R.S.Narula, J.

1. This is a petitioners first appeal under Section 28 of the Hindu Marriage Act, 25 of 1955, hereinafter called the Act, against the order dated June 11, 1962 passed by the Court of Shri Jaswant Singh, Senior Subordinate Judge, Ferozepore, dismissing the appellants petition under Section 9 of the Act for restitution of conjugal rights.

2. Marriage between the two spouses, both of whom, are admittedly Hindus within the meanings of the Act, was performed on June 20, 1947. A daughter was born from the wedlock in June, 1953. It is not disputed that the parties are living separately since June, 1956. The respondent had, according to the appellant, withdrawn from the appellants society since she left his house with her parents who had taken her away on 14th June, 1956 on the pretext that she had to attend the marriage of her relations. According to the respondents case the appellant had got annoyed with her when a daughter was born to them and since then he had started maltreating her. The respondent has stated in her reply to the petition for restitution of conjugal rights that the appellant beat the respondent and turned her out of his house saying that she was neither beautiful nor had given birth to a male child and that he would have to marry again in order to get a son.

3. On April 27, 1960 the appellant filed a petition under Section 9 of the Act for restitution of conjugal rights. The respondent filed on 12th May, 1960 an application under Section 488 of the Code of Criminal Procedure in the Court of a Magistrate at Amritsar which was later ordered to be returned to her for presentation to a Court of competent jurisdiction. In her written reply dated 21st July, 1960 to the previous petition the respondent claimed to have been cruelly treated and to have been turned out of the house by the appellant.

4. In the said previous proceedings under Section 9 of the Act respondent made an application under Section 24 for a direction to the husband to pay her litigation expenses and maintenance pendente lite. By orders dated October 6, 1960, the appellant was directed to pay the respondent Rs. 100/- on account of litigation expenses and Rs. 30/- p.m. with effect from 1st April, 1960 on account of maintenance till the final disposal of the case. Time till October 28, 1960 was granted for making the payment and the case was adjourned for recording of evidence to November 16, 1960.

5. Admittedly the appellant did not make payment of any of the amounts in question within the time allowed to him. When the case came up before the Court on October 28, 1960 the counsel for the appellant, who was appearing in those proceedings, stated before the trial Court that his client was unable to pay the amounts and that he would not pay the same. He further stated that the petitioner for restitution of conjugal rights may be dismissed. This statement of the counsel for the appellant was incorporated in the order passed by the trial Court in the previous case on 28th October, 1960. In view of the statement of the appellants counsel the petition for restitution of conjugal rights was dismissed with costs.

6. On January 16, 1961 a fresh petition under Section 9 of the Act was filed by the appellant in the trial Court for restitution of conjugal rights against the respondent on the same grounds as the previous petition. In her written statement dated March 24, 1961 the respondent pleaded, inter alia, that after having been turned out by the appellant she had approached him along with his father and some other relatives to provide the respondent and her child with maintenance but that the appellant had refused to maintain them and had further told them that if the respondent persisted to live with him or if she would stand in his way to remarry he would kill the respondent and her child. In para 6 of the written reply the respondent has further pleaded that the petition of the husband is liable to be dismissed on the additional groun