The court held that a counterclaim must be treated independently and allegations of cruelty require clear evidence to warrant a divorce.

JUDGMENT

(Judgment of the Court was delivered by N. ANAND VENKATESH, J.)

The husband has assailed the order passed by the family Court, Pudukottai in HMOP No.192/2021 dated 24.05.2023, wherein, the petition filed by the husband seeking for the dissolution of the marriage was rejected and the counter claim filed by the wife seeking for restitution of conjugal rights was ordered.

2. We have heard the learned counsel for the appellant and the learned counsel for the respondent.

3. The appellant was married to the respondent on 08.07.2019 as per Hindu Rites and Customs. After the marriage, they resided in the matrimonial home for hardly few months. According to the appellant, even during the short period, the respondent was talking ill of the appellant and disrespected his parents and she went to her parents house and never returned back to the matrimonial home. The respondent gave birth to a child and the appellant was not even invited to the parents house to see the child.

4. It is under these circumstances, divorce petition came to be filed by the appellant on the ground of cruelty under Section 13(1) (i-a) of the Hindu Marriage Act for dissolving the marriage.

5. The respondent filed counter and also made a counter claim for restitution of conjugal rights. The respondent made several allegations against the appellant to the effect that she was treated with cruelty and the appellant used to move closely with his brother's wife and the appellant did not even care to visit the hospital or the house of the parents of the respondent, after the child was born. Even when the respondent's parents took the child to the appellant's house, neither the appellant nor his parents spoke anything. Thus, the respondent took a stand that she was forced to move out of the matrimonial home and that in spite of the deficiencies on the part of the appellant, she wanted to live with the appellant considering the future of the child. Hence, the respondent sought for the relief of restitution of conjugal rights.

6. PW1 and PW2 were examined on the side of the appellant and Ex.P1 to Ex.P3 were marked. RW1 to RW4 were examined on the side of the respondent and Ex.R1 was marked.

7. The family Court, on considering the facts and circumstances of the case and on appreciation of evidence, proceeded to dismiss the divorce petition filed by the appellant and allow the counter claim filed by the respondent seeking for restitution of conjugal rights. Aggrieved by the same, the present appeal has been filed before this court.

8. This Court carefully considered the submissions made on either side and the materials available on record.

9. Even at the outset, we enquired the learned counsel for the appellant as to how a single appeal is maintainable as against two distinct reliefs that were granted by the family Court – one by rejecting the divorce petition and the other allowing the counter claim and granting the relief of restitution of conjugal rights. We put this question on the ground that counter claim has to be considered as an independent suit/petition filed by the respondent and the relief granted in the counter claim must be considered as an independent relief, which must also be put to challenge.

10. The learned counsel for the appellant submitted that the family Court passed a common judgment and common decree and therefore, single appeal is maintainable.

11. We have our own reservations on the above stand taken by the learned counsel for the appellant. In our considered view, counter claim made by the respondent has to be considered as an independent petition since an independent and