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2002 DIGILAW 496 (KAR)

K. HEMAVATHY v. N. ASHOK KUMAR

2002-08-13

D.V.SHYLENDRA KUMAR, T.S.THAKUR

body2002
TIRATH S. THAKUR, J. ( 1 ) THIS appeal under Section 28 of the Hindu Marriage Act, 1955, is directed against an order passed by the I Additional Judge, Family court, Bangalore, whereby M. C. No. 1074 of 1995 filed by the respondent husband under Section 9 of the Hindu Marriage Act, for restitution of conjugal rights has been dismissed as withdrawn without considering the counter-claim made by the appellant herein. The facts leading to the filing of the petition and the present appeal may be briefly set out as under: the parties are Hindus by faith. They got married to each other on 4-9-1987 at Tirupattur in Tamil Nadu. Differences it appears surfaced between the couple because of which they have been living separately. Since the appellant was unable to maintain herself, she filed Cr. Mis. No. 92 of 1995 and P. Mis. No. 8 of 1995 before the Additional Family court at Bangalore for the grant of maintenance. The respondent-husband on the contrary filed a petition under Section 9 of the Hindu marriage Act for restitution of conjugal rights before the Subordinate judge at Tirupattur, North Arcot, Ambedkar District in the State of tamil Nadu. The said petition was at the instance of the appellant-wife transferred by the Supreme Court to the Family Court at Bangalore for trial along with the petitions for maintenance pending before the said court, Upon transfer, the respondent-husband's petition was registered as M. C. No. 1074 of 1995. The appellant filed her objection to the petition and made a counter-claim under Section 23-A of the Hindu Marriage act for a decree of divorce under Section 13 (l) (ia) and (ib) of the act besides claiming permanent alimony at the rate of Rs. 3,000/- p. m. for herself and her two children. A direction for return of the jewels belonging to the appellant worth Rs. 1 lakh was also prayed for by the appellant. While the matter was still pending at the initial stage of the proceedings, the respondent-husband moved an application seeking permission to withdraw the petition filed by him. That application was allowed by the Family Court and the petition dismissed as withdrawn by an order dated 20-12-1996. The dismissal order does not make any mention of the counter-claim made by the appellant. That application was allowed by the Family Court and the petition dismissed as withdrawn by an order dated 20-12-1996. The dismissal order does not make any mention of the counter-claim made by the appellant. The inevitable inference is that the Court has because of the dismissal of the main petition filed by the husband impliedly dismissed the counter-claim of the wife. Aggrieved, the appellant-wife has filed the present appeal as already noticed earlier. ( 2 ) WE have heard Mr. Prasad, learned Counsel for the appellant and perused the record. The respondent has not chosen to appear and contest this appeal despite service. ( 3 ) MR. Prasad argued that the Court below was not justified in dismissing the petition filed by the respondent having regard to the fact that the appellant-wife had made a counter-claim and sought decree of divorce and other reliefs in the same. He contended that even if the suit in which the counter-claim is made, is withdrawn, the Court before whom the same is pending can proceed with the counter-claim as any such counter-claim is for all intents and purposes a separate suit which has to be tried, and disposed off on its own merits. Inasmuch as, the family Court ignored the settled legal position and closed the proceedings as though the counter-claim could not survive the dismissal of the husband's petition in which the same was made, it committed a mistake which deserved to be corrected in appeal. ( 4 ) SECTION 21 of the Hindu Marriage Act provides that subject to other provisions contained in the said Act and to such rules as the High court may make in that behalf, all proceedings under the Act shall be regulated, as far as may be, by the Code of Civil Procedure, 1908. The high Court of Karnataka has in exercise of the power available under the said provision framed what are known as Hindu Marriage Rules. Those Rules inter alia provide for registration of petitions filed under sections 9 to 13 of the Act as miscellaneous petitions. The Rules do not however indicate whether or not the provisions of Order 8, Rules 6-A to 6-F of the CPC which envisage filing of counter-claims and matters incidental thereto have any application to the proceedings under the hindu Marriage Act. The Rules do not however indicate whether or not the provisions of Order 8, Rules 6-A to 6-F of the CPC which envisage filing of counter-claims and matters incidental thereto have any application to the proceedings under the hindu Marriage Act. There was even in regard to regular suits a cleavage in judicial opinion as regards the scope of Order 8, Rule 6-A of the cpc. Some of the High Courts in the country had taken the view that a counter-claim in terms of Order 8, Rule 6-A was maintainable only in a case where the suit itself related to payment of money. The conflict has now been resolved and the legal position authoritatively settled by the decision of the Supreme Court in Jag Mohan Chawla and Another v dera Radha Swami Satsang and Others. The Court has in that case held that the provisions of Rule 6-A are couched in wide terms so that parties are entitled to make a counter-claim even in non-money suits. The decision does not however examine the question whether a counterclaim is maintainable under Order 8, Rule 6-A of the Code even in proceedings under the Hindu Marriage Act, having regard to the fact that the said proceedings are regulated by the CPC only as far as may be. That question need not however detain us. That is because Section 23-A of the act itself permits the making of a counter-claim. It reads as under:"in any proceeding for divorce or judicial separation or restitution of conjugal rights, the respondent may not only oppose the relief sought on the ground of petitioner's adultery, cruelty or desertion, but also make a counter-claim for any relief under this act on that ground; and if the petitioner's adultery, cruelty or desertion is proved, the Court may give to the respondent any relief under this Act to which he or she would have been entitled if he or she had presented a petition seeking such relief on that ground". ( 5 ) IT is evident from a bare reading of the above that a party defending any action brought under the Hindu Marriage Act for divorce, judicial separation or restitution of conjugal rights is not only entitled to do so on the ground of the petitioner's adultery, cruelty or desertion but also make a counter-claim for any relief under the Act on anyone of those grounds. The provision makes it explicit that any such charge of adultery, cruelty and desertion if proved against the petitioner, the court may give to the respondent any relief under this Act to which he or she would have been entitled if he or she had presented a petition seeking any such relief on that ground. That is precisely what the appellant had done in the instant case. She had not only set-up a defence to the action brought by the respondent-husband but also made a counterclaim for a decree for dissolution of marriage under Section 13 (ia) and (ib) and for payment of maintenance and return of jewels. The counterclaim ought to have been logically registered as a separate petition by the Family Court in terms of the Hindu Marriage Rules, 1956. Even if one were to ignore the non-registration of the counter-claim as being a mere irregularity, the Family Court ought to have kept in view the well-settled legal position that withdrawal of the original suit in which the counter-claim is filed does not render the counter-claim infructuous. In any such eventuality, the Court was required to proceed with the counter-claim and take the same to its logical conclusion. The Family court has unfortunately remained oblivious of that position and has proceeded to dismiss the petition filed by the respondent without so much as making a mention of the any counter-claim made before it. The impugned order does not disclose the awareness of the Family Court regarding the pendency of the counter-claim. The order appears to have been passed without proper application of mind and in a hurry. It is therefore difficult to sustain the same. ( 6 ) WE accordingly allow this appeal, set aside the order made by the Court below to the extent the same ignores the counter-claim made by the appellant and purports to dismiss the same along with the petition filed by the respondent. We direct that the Family Court shall register the counter-claim and proceed to deal with the same in accordance with law after service of a fresh notice upon the respondent herein. Since the respondent has not appeared to oppose this appeal, there shall be no orders as to costs. --- *** --- .