Smt. Kamlesh Kumari vs Dharam Paul Khajuria

A.S. Anand, C.J.—This revision petition is directed against an order of the learned District Judge, Jammu, dated 2-11-1985, whereby he

has dismissed an application filed by the petitioner seeking withdrawal of the petition filed by her u/s 9 of the Hindu Marriage Act.

The parties to the petition were married on 17-1-1974 but subsequently it appears, their relations became strained. The petitioner filed a petition

u/s 9 of the Jammu and Kashmir Hindu Marriage Act (hereinafter referred to as the Act) in the Court of learned District Judge, Jammu, seeking a

decree of restitution of conjugal rights. It appears that the respondent had earlier filed a petition u/s 9 of the Act in the Court of District Judge,

Jammu, which was pending when the petitioner filed her petition because the fact of the pendency of the husband's petition was not known to the

petitioner.

The petition filed by the petitioner was transferred for its disposal to the learned Second Addl. District Judge, Jammu, but the petition filed by

the respondent continued to remain on the file of the District Judge, Jammu. Subsequently, it transpires, both the petitions were transferred to the

Court of District Judge, Jammu. The parties appeared and were directed to file objections to the petitions filed against them by each other. Before

the respondent could file his objections to the petition filed by the petitioner, the petitioner filed an application before the learned District Judge,

Jammu, on 13-8-1985, stating therein that since a petition u/s 9 of the Act had been filed by the respondent against her and the respondent was

carving out a ground for getting a decree of divorce after obtaining a decree u/s 9 of the Act, therefore, she desired that the petition filed by her

may be dismissed as withdrawn. The application for withdrawal was resisted by the respondent who filed his objections on 26-8-1985. Vide

impugned order the learned District Judge, Jammu, dismissed the application of the petitioner seeking withdrawal of the petition u/s 9 of the Act

holding that since a counter-claim had been made u/s 29 of the Act by the respondent, the petitioner could not be allowed to withdraw the main

petition.

Appearing for the petitioner, Mr. J.P. Singh, submitted that the interpretation placed by the learned District Judge on Section 29 of the Act was

erroneous and that in the instant case, the petition filed by the respondent, which was prior in point of time, could not even otherwise be said to be

a counter-claim to the petition filed by the petitioner and since both the petitions had sought the same relief and had been filed independently by

both the parties, the petition filed by the wife was an independent proceeding and she was entitled not to pursue it. He further submitted that since

the Code of Civil Procedure, to the extent it is not in consistent with the provisions of the Act, is applicable to the proceedings under the Hindu

Marriage Act, the learned District Judge could not in view of the provisions of Order XXIII, C.P.C. compel the petitioner to pursue her case when

she did not want to proceed with it. Learned counsel, however, did not question the validity of the other findings recorded by the learned District

Judge, rejecting some other prayers of the petitioner.

Mr. R.P. Bakshi, learned counsel for the respondent has, on the other hand, argued that the petition filed by the respondent was in the nature of

a counter-claim and in case the petitioner was permitted to withdraw the petition filed by her, the respondent's case would be seriously prejudiced

and urged that the petitioner could not be permitted to withdraw the case at her sweet will.

I have given my anxious consideration to the respective contentions raised at the bar.

That both the husband and the wife have filed separate petitions u/s 9 of the Act seeking restitution of conjugal right is a matter which is not in

dispute. It is also not denied that the husband had filed his petition prior in point of time.

Thus, the short question which requires determination in this petition is the interpretation and scope of Section 29 of the Act and the meaning of

the expression ""counter-claim as occurring therein. The said section reads as follows : --

Relief for respondent in divorce and other proceedings : --

In any proceeding for a 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 the 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.

Section 29 (supra) on its plain reading provides that in any proceeding for divorce or judicial separation or restitution of conjugal rights, the

respondent to the petition may not only oppose the relief sought by the petitioner on the ground of the petitioner's own adultery, cruelty or

desertion but may also make a 'counter-claim' for any relief under the Act and in the even the petitioner's adultery, cruelty or desertion is proved,

the Court may give to the respondent any relief to which he or she may be entitled had he or she filed an independent petition seeking relief on that

ground. The object of the section appears to be to avoid multiplicity of the proceedings and it gives to the respondent to the proceedings, a right

not only to oppose the relief claimed by the petitioner but also to claim a relief to which he or she may consider to be entitled by filing a counter-

claim alleging the petitioner's own adultery, cruelty or desertion, as the case may be. This section comes into play only where the respondent

opposes the relief sought by the petitioner and through a counter-claim asks for a relief in his or her own right on the ground of petitioner's adultery,

cruelty or desertion.

'Counter-claim' is, generally speaking, a weapon of offence and enables the respondent to enforce a claim against the petitioner as effectively as

an independent action. The claim must be ""Counter"" and not ""complementary"", and the expression ""counter"" implies 'opposite' and not the 'same'.

Law Lexicon -- by Venkataramaiya Vol. I Second Edn. 1978-83 p. 550, defines a counter-claim as under :

.....On the other hand, counter-claim is realty a weapon of offence and enables a defendant to enforce a claim against the plaintiff as effectively as

an independent action. The main purpose of allowing a defendant to set up a counter-claim is to avoid multiplicity of proceedings between the

parties.

In Black's Law Dictionary (4th Edn.) requisites of a counter-claim have been explained as follows : --

It's sole requisites are that it must tend to defeat or diminish plaintiffs demand, and that demand must be reciprocal.

A perusal of the order of the learned District Judge under challenge, and the record of the case reveal that both the husband and wife had filed

separate petitioners but claiming the same relief, that is, the restitution of conjugal rights. The petition of either of the parties u/s 9 of the Act could,

therefore, by no stretch of imagination, be treated as a counter-claim to the petition filed by the other party because a counter-claim has to be a

cause of action seeking affirmative relief aimed not only to defeat the petitioner's cause of action but to claim a relief which negatives the petitioner's

plea. The effect of a counter-claim would be that the counter-claim would be treated for all intents and purposes as not only resisting the grant of

relief to the petitioner but also seeking a distinct relief against the petitioner. The essential pre-requisite for a defence to acquire the flavour of a

counter-claim is that it must be aimed at defeating the demand of the plaintiff or in any event diminishing that demand. In the instant case, the wife's

petition did not fall in that category. It was not a counter-claim but a claim complementary to the relief sought by the husband The learned District

Judge fell in error in treating the petition filed by the wife as a counter-claim and refusing permission to her to withdraw her petition.

With the withdrawal of the petition filed by the wife, which as already noticed, was an independent one filed in ignorance of the petition

preferred by the husband, no prejudicial effect, let alone a serious effect, could fall on the petition filed by the husband u/s 9 of the Act. That

petition shall have to be disposed of on its own merits and the withdrawal of the petition filed by the wife would not effect its continuation.

Strictly speaking, therefore, the provisions of Section 29 (supra) were not applicable to the facts and circumstances of the present case and the

order of the learned District Judge rejecting the prayer of the petitioner to withdraw her petition was clearly erroneous. Under Order XX III,

C.P.C., she was entitled and legally competent to withdraw the petition filed by her and she could not be compelled to pursue her case.

Thus, for what has been said above, this revision petition is partly allowed The order of the learned District Judge, rejecting the application of

the petitioner seeking to withdraw her petition filed u/s 9 of the Act, is set aside and she is permitted to withdraw the said petition. It is clarified that

withdrawal of the petition filed by her will not in any way, affect the continuation of the independent petition filed by the respondent against her u/s

9 of the Act.

Parties, through their learned counsel are directed to appear before the learned trial Court on Mar. 16, 1987.