SIBNATH MUKHOPADHYAY Vs. SUMITA MUKHOPADHYAY CHATTERJEE

JUDGEMENT

(1.) A husband's petition for restitution of conjugal rights was not only opposed by the wife but was countered with a claim for dissolution of the marriage on the ground of cruelty committed by the husband. Section 23A of the Hindu Marriage Act, as inserted by the Amendment Act of 1976, has now expressly permitted such counter claim providing that -

(2.) This Section, to our mind, has again demonstrated carelessness and also "slovenliness in drafting" which, as pointed out by Bhagwati, J. in Minerva Mills (A.I.R. 1980 S.C. 1799 at 1823) "is becoming rather common these days". The spouse proceeded against for the restitution of conjugal rights is obviously entitled to oppose the claim not only on the ground of the petitioner's adultery, cruelty or desertion, but also on any other ground on which a marriage may be dissolved under Section 13 of the Act, e.g., incurably of unsound mind or suffering from leprosy in a virulent and incurable form or from venal disease in a communicable form and the like. And if a spouse can do so, it is difficult to understand as to why he or she would not be entitled to make a counter claim for divorce of any such ground other than the three specified in Section 28A, namely, adultery, cruelty or desertion. This point, however, need not detain us as here the counterclaim of the wife for dissolution of marriage was on the ground of cruelty by the husband.

(3.) The trial court decreed the husband's petition for restitution of conjugal rights and dismissed the wife's counterclaim for divorce. On appeal to this Court, the decision of the trial court was completely overturned and a Division Bench of this Court, while dismissing the husband's petition for restitution of conjugal rights, decreed the wife's counterclaim for divorce and also granted the wife permanent alimony at the rate of Rs. 300 per month.