A. M. BHATTACHARJEE, J.

( 1 ) A husband's petition for restitution of conjugal rights was not only opposed by the wife but was countered with a claim for dissolution of the marriage on the ground of cruelty committed by the husband. Section 23a of the Hindu Marriage Act, as inserted by the Amendment Act of 1976, has now expressly permitted such counter claim providing that -"in any proceeding - for 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 counterclaim for only 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".

( 2 ) THIS Section, to our mind, has again demonstrated carelessness and also "slovenliness in drafting" which, as pointed out by Bhagwati, J. in Minerva Mills (A. I. R. 1980 S. C. 1799 at 1823) "is becoming rather common these days". The spouse proceeded against for the restitution of conjugal rights is obviously entitled to oppose the claim not only on the ground of the petitioner's adultery, cruelty or desertion, but also on any other ground on which a marriage may be dissolved under Section 13 of the Act, e. g. , incurably of unsound mind or suffering from leprosy in a virulent and incurable form or from venal disease in a communicable form and the like. And if a spouse can do so, it is difficult to understand as to why he or she would not be entitled to make a counter claim for divorce of any such ground other than the three specified in Section 28a, namely, adultery, cruelty or desertion. This point, however, need not detain us as here the counterclaim of the wife for dissolution of marriage was on the ground of cruelty by the husband.

( 3 ) THE trial court decreed the husband's petition for restitution of conjugal rights and dismissed the wife's counterclaim for divorce. On appeal to this Court, the decision of the trial court was completely overturned and a Division Bench of this Court, while dismissing the husband's petition for restitution of conjugal rights, decreed the wife's counterclaim for divorce and also granted the wife permanent alimony at the rate of Rs. 300 per month.

( 4 ) IN her written statement in the main lis, the wife-respondent made a prayer for return of certain articles specified in the schedule thereto, but the trial Judge having decreed the husband's petition for restitution of conjugal rights, did not make any order in respect of that prayer. The Division Bench on appeal, after allowing the appeal and decreeing divorce, remanded the case of the wife for return of the articles to the trial court for fresh adjudication under Section 27 of the Hindu Marriage Act on the evidence on record and on further evidence to be adduced by the parties, but made it clear that it was expressing "no opinion whether or not the claim of the appellant in respect of the items of property or ornaments mentioned in the Schedule to her written statement can be entertained under Section 27 of the Hindu Marriage Act".

( 5 ) THE trial Judge, after remand, treated the matter as "a proceeding under Section 27 of the Hindu Marriage Act" and after recording evidence and hearing the parties, allowed the claim of the wife holding that she was "entitled to get back from the petitioner (husband) 1 necklace, 8 pieces of Bangles, 1 Bala, 1 pair Earrings, all of gold, or 8 Bharies of gold in lieu thereof, 4 Benarasi Sarees, 1 big plate of stainless steel, 1 small dish of stainless steel and 1 glass of stainless steel" and directed the petitioner-husband to return the aforesaid articles to the wife-respondent. Being aggrieved, the petitioner-husband has filed this appeal.

( 6 ) IF this was, as the trial court thought it to be, a separate proceeding under Section 27 of the

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