In a proceeding for restitution of conjugal rights, the respondent is entitled to make a counter claim for any relief under the Act on the ground of petitioner's adultery, cruelty, or desertion, including a claim for permanent alimony for the respondent and the minor child under Section 25 of the Act.

( 1 ) AT the stage of admission the respondent is notified. Accordingly she has put in appearance through a counsel. Hence, these CRPs are taken up for final hearing itself.

( 2 ) THESE two civil revision petitions are preferred by the petitioner in MC No, 12 of 1980. The respondent in there civil revision petitions is also the respondent therein. CRP No. 1530/81 is directed against the order rejecting IA IV filed by the petitioner for withdrawing the petition (MC 12/80) filed by him for restitution of conjugal rights under S. 9 of the Hindu marriage Act, 1955 (hereinafter referred to as the Act ). CRP No. 1531/81 is preferred against the order passed on IA I 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 ia IV on the ground that the respondent-wife has; made a counter claim under S, 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 without reserving liberty to institute a fresh suit, in respect of the same cause of action under Or. 23, R. 1 of CPC (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 S, 23a of the Act, there was no difficulty whatsoever in accepting the contention. S. 23a of the Act specifically provide; as follows : -"23 A. Relief for respondent in divorce and other proceedings :-In any proceeding for divorce or judicial separation or restitution of conjugal rights, the res- pendent may not only oppose the relief sought on the ground of petitioner's aduifery. cruelty or desertion, but also make a counser 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 S. , 25 of the act. The contention of Sri Dasappa is that the claim made in she application IA 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 s. 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 IA 3 satisfies the require, ments of S. 25a of the Act. That being so, when there is a counter claim and that counter claim falls within the scope of s. 23a lead with S, 25 of the Act, ia 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