Section 23A of the Hindu Marriage Act, 1955, allows a respondent in a matrimonial case to file a counterclaim for any relief under the Act on the ground of the petitioner's adultery, cruelty, or desertion, even if the petition is not based on any of these grounds.

( 1 ) PETITIONER sued Respdt. u/s 13 on 2. 6. 79 in the Court of ADJ. While petitioners evidence was on and he was being examined Respdt. applied to High Court for transfer of case to itself. It was allowed. While petitioner was being cross examined, Respdt. applied for amendment of W/s for incorporating the right given to her u/s 23 A. It was allowed. Para onwards, order is

( 2 ) A large no. of amendments were introduced by Act 68 of 1976. Object of legislation was mainly (i) to liberalize provisions relating to divorce (ii) to enable expeditions disposal of cases under the Act, and (iii) to remove certain anomalies and handicaps that had come to light after passing of Act. It is ; also indicated therein that in order to avoid multiplicity of litigation and consequent delay, it was proposed to apply the amended law to ali pending proceedings.

( 3 ) CIAU. E 17 of the Notes on Clauses dealing with the introduction of Section 23 A reads as follows :

"clause 17. This clause seeks to insert new section 23 A with a view to avoid multiplicity of proceedings. It is proposed that where a proceeding is initiated by a party on the ground of adultery, cruelty or desertion, the responpent may not only oppose the relief sought but may also make a counterclaim for any relief under the Act on that ground".

( 4 ) FROM a perusal of the section and the background of the introduction, as above noticed, it is clear that the purpose of the provision is to save time which would otherwise be spent in separate litigation. However,; it is only applicable in those matrimonial cases where the petitioner s adultery, cruelty or desertion is in issue. But the plea can bei raised in any proceeding whether they be for divorce, judicial separation or restitution of conjugal rights, on any of the permitted grounds.

( 5 ) THEREFORE, if a petitioner files a petition u/s 13 of the Act praying for decree of dissolution of marriage on the ground that the respondent has ceased to be a Hindu by conversion to another religion, the respondent would be entitled u/s 23a not only to oppose the relief on the basis of petitioner s cruelty but also make a counter-claim and ask for a decree of judicial separation or divorce. And if, the respondent successfully establishes the petitioner s cruelty, then the respondent is entitled to the relief.

( 6 ) SIMILARLY, if a petition for restitution; of conjugal rights were filed, apart from resisting the said relief, the respondent could pray for a decree of judicial separation or. divorce on the ground of the petitioner s adultery, desertion or cruelty.

( 7 ) THE salient point to note is that it is only these three grounds i. e. petitioner s adultery, cruelty or desertion which come within the purview of section 23a of the Act for the purpose of filing a counter-claim. Once one of these three grounds is established by the respondent, then the respondent is entitled to any relief under the Act which would have been available to the respondent if the respondent had presented a petition seeking such a relief on that ground. Question 5 posed in this CAse, is, would the respondent have been entitled to a relief of restitution of conjugal rights if she had presented a petition u/s 9 of the Act on the ground of desertion.

( 8 ) SECTION 9 of the Act provides that when either the husband or ths wife has without reasonable excuse withdrawn from the society of the other, the aggrieved party may apply for restitution of conjugal rights. Such a decree may be granted if the court is satisfied of the truth of the statement and there is no legal bar in granting the relief. The explanation to S. 9 makes it clear that the burden of proving reasonable excuse is on the person who has withdrawn from the society of the other. As such, it is apparent that the main thing to be established in order to entitle a person to a relief of restitution of conjugal rights is a withdrawal from the society of the other without resonable excuse i. e. the person