Kumud Wadhwa vs M.K. Wadhwa

V.K.Jhanji

Parties to this petition got married on 10.10.1990 at New Delhi. In the year 1991, petitioner filed petition u/s 10 read with Section 13(1)(ia) of Hindu Marriage Act (hereinafter referred to as the Act) in the Matrimonial Court at Delhi, seeking relief of divorce and in the alternative relief of judicial separation. Subsequently, the husband also filed a petition u/s 13 of the Act in the Court of Additional District Judge, Faridabad, seeking relief of divorce on the ground of cruelty. The petitioner, for getting the proceedings stayed at Faridabad, made an application u/s 10 of Civil Procedure Code, This prayer of the petitioner on contest, was declined on the ground that the proceedings under the Act cannot be termed as ''suit(s)'' as contemplated u/s 10 of Civil Procedure Code. This order is being impugned here in this Civil revision by the wife.

After hearing the learned Counsel for the parties, I am of the view that this Civil revision deserves to succeed.

Without going into the question as to whether the proceedings under the Act can be termed as ''suit(s)'' or not, proceedings in different Courts normally should not be allowed to be continued particularly in view of the provisions of Section 23A of the Act. The respondent in this case, by invoking the provisions of Section 23A of the Act, not only can defend the petition of the wife at Delhi, but can also make a counter claim in the Matrimonial Court at Delhi. Section 23A of the Act provides that "in any proceedings 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".

In view of this provision, the respondent in a petition for divorce, can always make a counter claim seeking divorce or judicial separation, as the case may be. Proceedings at Faridabad were initiated after the petition was filed at Delhi. Therefore, the same are stayed. However, it shall be open to the respondent, if so advised, to make a counter claim seeking any relief under the Act in the proceedings pending at Delhi.