AIR 1983 KARNATAKA 114 ::1982 (2) DMC 121 ::(1982) 2 Kant LJ 41 ::ILR (1982) 1 Kant 816

Karnataka High Court

Hon'ble Judge(s): K. A. Swami , J

Hindu Marriage Act (25 of 1955) , S.9, S.23A, S.25— Civil P.C. (5 of 1908) , O.23 R.1— Application by husband for restitution of conjugal rights - Wife opposing the petition and claiming alimony - Order refusing to allow withdrawal of the restitution petition is correct - Application for maintenance was allowed. In a proceeding filed under the Act for divorce or judicial separation or restitution of conjugal rights the respondent, in addition to opposing the claim made by the petitioner, is entitled to make a counter-claim for any relief under the Act on the ground of petitioner's adultery, cruelty or desertion.(Para 5) A claim for alimony by the wife, for herself and her child in an application by the husband for restitution of conjugal rights is a "counter-claim" within the meaning of S.23-A of the Act. @page-Kant115 When there is a counter-claim and that counter-claim falls within the scope of Section 23-A read with S.25 of the Act, in such a situation, if the petitioner is allowed to withdraw the main petition it will seriously affect the counterclaim made by the respondent because the counter-claim can be entertained only when there is a proceeding for divorce or judicial separation or restitution of conjugal rights. .....