KRISHNA DEVI Vs. ADDL CIVIL JUDGE BIJNOR

JUDGEMENT

(1.) By means of this Writ Petition, the petitioner has sought a prayer for quashing the order Dt. 1st May, 1984 (Annexure-III to the writ petition), passed by Addl.Civil Judge, Bijnor, in Matrimonial Suit No.213 of 1982.

(2.) The facts in brief are that the parties were married according to Hindu religious rites on 13th Feb., 1977. A petition under S.9, Hindu Marriage Act (in short the Act) was filed on 28th Sept., 1982 by the husband, Dr. Susheel Kumar Sharma (Respondent 2). It is alleged in the petition that the petitioner, Smt. Krishna Devi, left her home on 29th July, 1977, without any reason and since then she is living at the residence of her parents. Respondent 2 who has filed the Matrimonial Suit before the Trial Court, has stated that he has made all the efforts to bring her back to his house, but was not successful. In the petition for restoration of conjugal rights no impalatable allegations are made against the petitioner by the respondent. The petitioner, so far did not file any written statement. The conduct of both the parties, till this day, does not seem to be such, which may create an obstacle on the way of reconciliation. The petitioner filed objection before the Additional Civil Judge that in the petition, both the reliefs for restitution of conjugal rights as well as relief for divorce cannot be made, inasmuch as, the same are contradictory to each other. This objection of the petitioner was rejected by the Civil Judge and hence this petition.

(3.) I have heard learned counsel of the parties and have perused the order as well as have looked into the relevant sections of the Act. Learned counsel for the petitioner, Shri R. M. Zaidi, has vehemently argued that both the reliefs cannot be sought on the basis of the petition that has been filed and also since both the reliefs cannot be reconciled and are contrary to each other, the petition is not maintainable in the shape and form, in which it is filed. In order to substantiate his argument he has drawn my attention to S.23-A of the Act, wherein it is specifically mentioned that the respondent in any of such petitions under the Act may oppose the relief on any of the grounds, viz., adultery, cruelty or desertion and such counter-claim, if made by the respondent, shall be treated as a petition on his or her behalf. He stated that such grounds are available to the respondents, but not for the petitioner. I have looked into the relevant provisions of the Act. Shri Zaidi also placed reliance on S.13-A of the Act which is being reproduced as under :-