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Smart Summary

Factual and Procedural Background

The petitioner originally filed M.C. No. 12 of 1980 for restitution of conjugal rights under Section 9 of the Hindu Marriage Act, 1955. The respondent was notified and appeared through counsel. Two civil revision petitions (C.R.P. Nos. 1530/81 and 1531/81) challenge two separate orders of the trial court: (1) C.R.P. No. 1530/81 challenges the order rejecting I.A. IV, an application by the petitioner seeking to withdraw the main petition; and (2) C.R.P. No. 1531/81 challenges the order on I.A. I granting interim maintenance of Rs. 100 per month and Rs. 250 towards the expenses of the proceedings to the respondent. The respondent has also made a claim for permanent alimony for herself and a minor child under Section 25 of the Act by way of I.A. III. The trial judge rejected the withdrawal application (I.A. IV) on the ground that the respondent had filed a counterclaim under Section 25 and that the marital relationship was not disputed.

Legal Issues Presented

  1. Whether the petitioner is entitled to withdraw the petition under Order 23 Rule 1 of the Code of Civil Procedure where the respondent has filed a counterclaim under Section 23A (read with Section 25) of the Hindu Marriage Act.
  2. Whether the trial court's order awarding interim maintenance of Rs. 100 per month and Rs. 250 towards expenses should be interfered with on revision.

Arguments of the Parties

Petitioner's Arguments

  • The petitioner, through Sri Dasappa, argued that under Order 23 Rule 1 of the Civil Procedure Code the court has no discretion but to permit withdrawal of the petition, provided withdrawal is without prejudice to the right to institute a fresh suit in respect of the same cause of action.
  • The petitioner relied on the Supreme Court decision in Hulas Rai v. K.B. Bass & Co., A.I.R. 1968 S.C. 111, asserting the principle concerning Order 23 Rule 1.

Respondent's Arguments

  • The respondent opposed withdrawal on the basis that she had filed a counterclaim under Section 25 of the Hindu Marriage Act for permanent alimony for herself and the minor child; this counterclaim falls within the scope of Section 23A of the Act.
  • Because the counterclaim arises in the proceeding for restitution of conjugal rights and is founded on cruelty (as alleged), allowing withdrawal would prejudice the respondent's right to have the counterclaim adjudicated in a pending proceeding under the Act.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Hulas Rai v. K.B. Bass & Co., A.I.R. 1968 S.C. 111 Decision concerning Order 23 Rule 1 of the Code of Civil Procedure (withdrawal of suit). The court observed that this case dealt with Order 23 Rule 1 but did not consider the scope and effect of Section 23A of the Hindu Marriage Act; consequently, the decision was held not to assist the petitioner in the present facts where Section 23A is in issue.

Court's Reasoning and Analysis

The court analyzed the interplay between Order 23 Rule 1 of the Civil Procedure Code (permitting withdrawal of a suit) and Section 23A of the Hindu Marriage Act, which permits a respondent in proceedings for divorce, judicial separation or restitution of conjugal rights not only to oppose the petition but to make a counterclaim for any relief under the Act on grounds such as adultery, cruelty or desertion.

The judge first observed that Section 23A expressly entitles a respondent to make a counterclaim for any relief under the Act in such proceedings. Here the respondent's application (I.A. III) seeks permanent alimony for herself and the minor child under Section 25 of the Act, and the alleged ground is cruelty by the petitioner. The court concluded that this claim satisfies Section 23A's requirements and thus constitutes a counterclaim properly cognizable only in the context of an existing proceeding under the Act.

Allowing the petitioner to withdraw the main petition would adversely affect the respondent's counterclaim because the counterclaim can be entertained only when the principal proceeding (divorce, judicial separation or restitution of conjugal rights) is pending. Therefore, the trial court's refusal to permit withdrawal was not illegal or an arbitrary exercise of discretion.

Regarding interim maintenance (I.A. I), the court noted the award was Rs. 100 per month and Rs. 250 towards expenses. It accepted as undisputed that the petitioner's take-home salary exceeded Rs. 500 per month; the award made to the respondent was thus less than one-fifth of that salary. The court found no justification to interfere with the trial court's interim maintenance order.

Holding and Implications

DISMISSED

Holding: Both civil revision petitions were dismissed. The trial court's refusal to allow the petitioner to withdraw the petition was upheld, and the interim maintenance order of Rs. 100 per month plus Rs. 250 towards proceedings expenses was left undisturbed.

Implications: The immediate effect is that the petitioner cannot withdraw the restitution petition so long as the respondent's counterclaim under Section 23A (read with Section 25) stands; the respondent's claim for permanent alimony remains preserved for adjudication within the existing proceeding. The court did not purport to lay down any new broad precedent beyond applying Section 23A and Section 25 to the facts; no novel legal principle was announced beyond the application of the statute to these circumstances.

    Sannaiah C. v. Padma .

    K.A Swami, J.:—

    At the stage of admission the respondent is notified. Accordingly she has put in appearance through a counsel. Hence, these Civil Revision petitions are taken up for final hearing itself.

    2. These two civil revision petitions are preferred by the petitioner in M.C No. 12 of 1980. The Respondent in these civil revision petitions is also the respondent therein C.R.P No. 1530/81 is directed against the order rejecting I.A IV filed by the petitioner for withdrawing the petition (M.C 12/80) filed by him for restitution of conjugal rights under Section 9 of the Hindu Marriage Act 1955 (hereinafter referred to as the Act). C.R.P No. 1531/81 is preferred against the order passed on I.A 1 granting interim maintenance of Rs. 100 per month and Rs. 250 towards the expenses of the proceedings to the respondent. Hence, these two civil revision petitions are heard together and are decided by a common order.

    3. The learned trial Judge has rejected I.A IV on the grounds that the respondent-wife has made a counter claim under Section 25 of the Act for permanent alimony to herself and also to the minor child that the relationship of the petitioner and the respondent as husband and wife is not disputed.

    4. The contention of Sri Dasappa, learned counsel for the petitioner is that since the petitioner wants to withdraw the petition the petition without reserving liberty to institute a fresh suit in respect of the same cause of action under Order 23 Rule 1 of the Civil Procedure Code (hereinafter referred to as the Code) the Court has no discretion, but to permit the petitioner to withdraw the suit. Of course, if there would not have been a provision like Section 23A of the Act, there was no difficulty whatsoever in accepting this contention. Section 23A of the Act specifically provides as follows:—

    “23A. Relief for respondent in divorce and other proceedings.—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. From the aforesaid provision it is clear that in a proceeding filed under the Act for divorce or judicial separation or restitution of conjugal rights the respondent in addition to opposing the claim made by the petitioner is entitled to make a counter claim for any relief under the Act on the ground of petitioner's adultery, cruelty or desertion. Now the relief claimed by the respondent wife is permanent alimony for herself and for the minor child. This claim falls under Section 25 of the Act. The contention of Sri Dasappa is that the claim made in the application I.A III for permanent alimony cannot be considered to be a counter-claim. According to the learned counsel the counter claim must be for either divorce or judicial separation or for restitution of conjugal rights and not for any other relief. It is not possible to accept this contention because section 23A of the Act, clearly provides that in a proceeding for divorce judicial separation or restitution of conjugal rights, the respondent can make a counter claim for any relief under the Act on the ground of the petitioner's adultery, cruelty or desertion. The contention raised in the application is that the petitioner-husband has treated her with cruelty. Therefore the claim made in I.A 3 satisfies the requirements of Section 23A of the Act. That being so, when there is a counter and that counter claim falls within the scope of Section 23A read with Section 25 of the Act, in such a situation, if the petitioner is allowed to withdraw the main petition it will seriously affect the counter-claim made by the respondent because the counter-claim can be entertained only when there is a proceeding for divorce or judicial seperation or restitution of conjugal rights. Therefore the trial Court cannot either be said to have acted illegally or exercised the descretion arbitrarily in refusing to permit the petitioner to withdraw the petition. The learned counsel for the petitioner has placed reliance on a decision of the Supreme Court reported in Hulas Rai v. K.B Bass & Co. . A.I.R 1968 S.C 111.. That is a case which relates to Order 23 Rule (1) of the Code and in that case the scope and effect of Section 23A of the Act have not been considered. Therefore, I do not think the enunciation made in that decision is of any help to the petitioner in this case.

    6. As far as the order passed on I.A I is concerned the interim maintenance awarded is only Rs. 100 per month and Rs. 250 are awarded towards expenses of the proceeding. It is not disputed that the take home salary of the petitioner is more than Rs. 500. That being so what is awarded to the respondent is less than 1/5th of the salary which the petitioner gets. Therefore, I do not think that there is any justification for this court to interfere with the order of the trial Court awarding interim maintenance of Rs. 100 per month and Rs. 250 towards the expenses of the proceeding.

    7. For the reasons stated above these civil revision petitions fail and the same are dismissed.

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    Comments

    Sannaiah C. v. Padma .
    (Oct 21, 1981)