IN THE HIGH COURT OF ORISSA AT CUTTACK

MATA No.69 of 2023

Subhasmita Dakua

..……. Appellant

Mr. Arya Tripathy, Advocate

-Versus-

Dhiresh Dakua

..……. Respondent

CORAM:

JUSTICE S. TALAPATRA

JUSTICE SAVITRI RATH

ORDER

15.03.2023

Order No.

01.

1.

This matter is taken up through Hybrid mode.

2.

Heard Mr. Arya Tripathy, learned counsel appearing for the

appellant.

3.

By means of this appeal, the order dated 13.02.2023,

delivered in Civil Proceeding No.216 of 2021 by the Judge, Family

Court, Nayagarh has been challenged.

4.

By the said order, the Civil Proceeding as instituted by the

respondent in this appeal has been allowed to be withdrawn with

liberty to file a fresh suit after removing the assigned defects.

5.

Mr. Tripathy, learned counsel has submitted that purpose of

such withdrawal is manifest. It is to deprive the appellant from getting

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the interim maintenance, as directed by the said Court. Learned

counsel for the appellant has apprised also that challenging the

quantum of the interim maintenance, a writ petition under Article-227

of the Constitution of India has been filed before this Court and the

respondent was successful to obtain an interim order for payment of

lessor amount, i.e. Rs.10,000/- (Rupees ten thousand) per month as

maintenance pendente lite.

6.

Mr. Tripathy, learned counsel has also referred two decisions

to buttress his submission. In Navjot Kaur @ Dolly vs. Ajeet Singh

Phull ; ILR 2002 KAR 3145, it has been observed by the Karnataka

High Court that a memo was filed without even the signature of the

husband, with a view to defeat the right of the wife to get interim

maintenance. During pendency of the proceeding in the Family Court,

the wife could have filed a petition either under Section-23A of the

Hindu Marriage Act, the Act hereinafter, on the grounds as

enumerated by way of a counter claim or under Section-25 of the Act

for permanent alimony or maintenance. This right to file the counter

claim has been defeated by the said order by allowing the husband to

withdraw the main petition.

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7.

On the basis of such observation, the Karnataka High Court,

had interfered with the order for permitting withdrawal of the suit in

Navjot Kaur (supra).

8.

Mr. Tripathy, learned counsel has also referred to the decision

in Kavitha vs. C. Prabakar: 2012 (5) CTC 587. The memo to

withdraw the divorce petition was filed in that case. The suit was

allowed to be withdrawn. When in the normal circumstances, the

court may not even ask for the reply/objection. For withdrawal

simplicitor, such memo is filed, the memo may be sufficient, but

granting permission to withdraw the petition with liberty to file a

fresh petition on the same cause of action, the application has to set

forth the grounds as to how the suit/petition suffers from formal

defects. Only such an application is filed in order to withdraw the

suit/petition, the opposite party would have had the opportunity of

explaining that (i) the suit/petition does not suffer from any formal

defect, and (ii) explain how the prejudice would be caused to the

opposite party, if permission is granted to withdraw the suit/petition

with liberty to file a fresh petition.

9.

Such grounds have not been resorted to by the appellant

herein. As such, both the reports do not come handy to support the

grounds as assigned in this appeal.

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10.

Hence, we are of the view that the formal defects as recorded

in the impugned judgment are sufficient to allow the liberty to file a

fresh suit. The other apprehension relating to deprivation of

maintenance allowance, as expressed by Mr. Tripathy, learned

counsel, cannot be accepted, as that order does not preclude the

a