SANJITA DAS Vs. SOMNATH DAS

JUDGEMENT

(1.) The petitioner is the wife resisting a suit for divorce on the ground of cruelty. The petitioner complains of an order of August 8, 2013 by which an application for receiving the petitioner's counter-claim has been declined. The petitioner says that all the averments in support of the counter-claim were contained in the written statement filed on behalf of the petitioner, but only the relief for restitution of conjugal rights was not included therein. The petitioner says that the Trial Court ought to have considered that the refusal to allow the counter-claim would result in multiplicity of proceedings and, in any event, the ingredients of the counter-claim had already been pleaded.

(2.) The husband is represented upon notice and says that it is the allegation in the written statement that the wife was driven out from the matrimonial home on February 27, 2006. The husband says that if the date of the application for receiving the counter-claim is taken as the relevant date within the meaning of Article 113 of the schedule to the Limitation Act, 1963, it would be evident that a period of more than three years had elapsed from the date of the petitioner being allegedly driven out from the matrimonial home before she sought to counter-claim for restitution of conjugal rights. The husband says that the counter-claim could not have been received and it has been rightly rejected in view of the claim for restitution being barred by limitation.

(3.) It is evident that all that was necessary to be said by the wife in support of a counter-claim for restitution of conjugal rights had been stated in the written statement. The prayer or counter-claim for restitution of conjugal rights was, however, not included. It is evident that the wife chose not to counter-claim and there was no explanation in the application for receiving the counter-claim at a belated stage as to what impelled the wife to re-think her stand and attempt to counter-claim when she had not done so while filing her written statement.