K HEMAVATHY Vs. N ASHOK KUMAR

JUDGEMENT

(1.) THIS appeal under Section 28 of the Hindu Marriage Act, 1955, is directed against an order passed by the I Additional Judge, Family court, Bangalore, whereby M. C. No. 1074 of 1995 filed by the respondent husband under Section 9 of the Hindu Marriage Act, for restitution of conjugal rights has been dismissed as withdrawn without considering the counter-claim made by the appellant herein. The facts leading to the filing of the petition and the present appeal may be briefly set out as under: the parties are Hindus by faith. They got married to each other on 4-9-1987 at Tirupattur in Tamil Nadu. Differences it appears surfaced between the couple because of which they have been living separately. Since the appellant was unable to maintain herself, she filed Cr. Mis. No. 92 of 1995 and P. Mis. No. 8 of 1995 before the Additional Family court at Bangalore for the grant of maintenance. The respondent-husband on the contrary filed a petition under Section 9 of the Hindu marriage Act for restitution of conjugal rights before the Subordinate judge at Tirupattur, North Arcot, Ambedkar District in the State of tamil Nadu. The said petition was at the instance of the appellant-wife transferred by the Supreme Court to the Family Court at Bangalore for trial along with the petitions for maintenance pending before the said court, Upon transfer, the respondent-husband's petition was registered as M. C. No. 1074 of 1995. The appellant filed her objection to the petition and made a counter-claim under Section 23-A of the Hindu Marriage Act for a decree of divorce under Section 13 (l) (ia) and (ib) of the act besides claiming permanent alimony at the rate of Rs. 3,000/- p. m. for herself and her two children. A direction for return of the jewels belonging to the appellant worth Rs. 1 lakh was also prayed for by the appellant. While the matter was still pending at the initial stage of the proceedings, the respondent-husband moved an application seeking permission to withdraw the petition filed by him. That application was allowed by the Family Court and the petition dismissed as withdrawn by an order dated 20-12-1996. The dismissal order does not make any mention of the counter-claim made by the appellant. The inevitable inference is that the Court has because of the dismissal of the main petition filed by the husband impliedly dismissed the counter-claim of the wife. Aggrieved, the appellant-wife has filed the present appeal as already noticed earlier.

(2.) WE have heard Mr. Prasad, learned Counsel for the appellant and perused the record. The respondent has not chosen to appear and contest this appeal despite service.

(3.) MR. Prasad argued that the Court below was not justified in dismissing the petition filed by the respondent having regard to the fact that the appellant-wife had made a counter-claim and sought decree of divorce and other reliefs in the same. He contended that even if the suit in which the counter-claim is made, is withdrawn, the Court before whom the same is pending can proceed with the counter-claim as any such counter-claim is for all intents and purposes a separate suit which has to be tried, and disposed off on its own merits. Inasmuch as, the family Court ignored the settled legal position and closed the proceedings as though the counter-claim could not survive the dismissal of the husband's petition in which the same was made, it committed a mistake which deserved to be corrected in appeal.