JUDGMENT
Leila Seth, J.
(1) Petitioner sued Respdt. u/s 13 on 2.6.79 in the Court of ADJ. While petitioners evidence was on and he was being examined Respdt. applied to High Court for transfer of case to itself. It was allowed. While petitioner was being cross examined, Respdt. applied for amendment of W/S for incorporating the right given to her u/s 23 A. It was allowed. Para onwards, order is
(2) A large no. of amendments were introduced by Act 68 of 1976. Object of legislation was mainly (i) to liberalize provisions relating to divorce (ii) to enable expeditions disposal of cases under the Act, & (iii) to remove certain anomalies & handicaps that had come to light after passing of Act. It is ; also indicated therein that in order to avoid multiplicity of litigation and consequent delay, it was proposed to apply the amended law to ali pending proceedings.
(3) CIAU.E 17 of the Notes on Clauses dealing with the introduction of Section 23 A reads as follows :
“CLAUSE17. This clause seeks to insert new section 23 A with a view to avoid multiplicity of proceedings. It is proposed that where a proceeding is initiated by a party on the ground of adultery, cruelty or desertion, the responpent may not only oppose the relief sought but may also make a counterclaim for any relief under the Act on that ground”.
(4) From a perusal of the section and the background of the introduction, as above noticed, it is clear that the purpose of the provision is to save time which would otherwise be spent in separate litigation. However,; it is only applicable in those matrimonial cases where the petitioner’s adultery, cruelty or desertion is in issue. But the plea can bei raised in any proceeding whether they be for divorce, judicial separation or restitution of conjugal rights, on any of the permitted grounds.
(5) Therefore, if a petitioner files a petition u/s 13 of the Act praying for decree of dissolution of marriage on the ground that the respondent has ceased to be a Hindu by conversion to another religion, the respondent would be entitled u/s 23A not only to oppose the relief on the basis of petitioner’s cruelty but also make a counter-claim and ask for a decree of judicial separation or divorce. And if, the respondent successfully establishes the petitioner’s cruelty, then the respondent is entitled to the relief.
(6) Similarly, if a petition for restitution; of conjugal rights were filed, apart from resisting the said relief, the respondent could pray for a decree of judicial separation or. divorce on the ground of the petitioner’s adultery, desertion or cruelty.
(7) The salient point to note is that it is only these three grounds i.e. petitioner’s adultery, cruelty or desertion which come within the purview of section 23A of the Act for the purpose of filing a counter-claim. Once one of these three grounds is established by the respondent, then the respondent is entitled to any relief under the Act which would have been available to the respondent if the respondent had presented a petition seeking such a relief on that ground. Question 5 posed in this CAse, is, would the respondent have been entitled to a relief of restitution of conjugal rights if she had presented a petition u/s 9 of the Act on the ground of desertion.
(8) Section 9 of the Act provides that when either the husband orthe wife has without reasonable excuse withdrawn from the society of the other, the aggrieved party may apply for restitution of conjugal rights. Such a decree may be granted if the court is satisfied of the truth of the statement and there is no legal bar in granting the relief. The explanation to S. 9 makes it clear that the burden of proving reasonable excuse is on the person who has withdrawn from the society of the other. As such, it is apparent that the main thing to be established in order to entitle a person to a relief of restitution of conjugal rights is a withdrawal from the society of the other without resonable excuse i.e. the person must show that there is no current cohabitation between the parties and one of the spouses has terminated the existing relationship with the purpose of abandoning the other either permanently or indefinitely without grave and weighty reasons. In common parlance, if one spouse has deserted the other and there is no legal bar to giving the relief, a decree for restitution of conjugal rights can be granted.
(8) However, Mr. Rawal appearing for the petitioner contends that withdrawal by one spouse from the society of the other without reasonable excuse does not amount to desertion as contemplated by the Act. He submits that desertion as provided for as a ground for divorce in S. 13(1) (ib) of the Act requires not only that there be a permanent forsaking or abandonment of one spouse without the consent of the other and without reasonable excuse but this state of affairs exist for a continuous period of two years prior to the presentation of the petition. Accordidg to him, this requirement of a two year period being absent in the case of an application u/s 9 of the Act for restitution of conjugal rights, the withwrawal from the society of the other without reasonable excuse is not desertion as contemplated by the Act and section 23A is not applicable. Further that relief by way of a counter-claim is not permissible unless the provisions of section 23A arc strictly complied with especially as S. 21 of the Act specifically provides that the Code of Civil Procedure, 1908 will apply subject to the other provisions contained in this Act and to such rules as the High Court may make in this behalf. He, therefore, urges that no other type of counter-claim can be permitted.
(9) It would appear to me that the submission of petitioner’s counsel is devoid of any force. According to the dictionary connotation, desertion means forsaking or willfully abandoning a legal or normal obligation. According to judicial prouncements, it has been defined as being an intentional permanent forsaking and abandonment of one spouse by the other without the other’s consent and without reasonable excuse. This is the same as withdrawal as contemplated in S. 9. S. 13(1) (ib) of the Act, specifically provides that the desertion should continue for a period of not less than iwo years immediately preceding the presentation of the petition. There is no such requirement in S. 9. If a relief is being sought u/s 13(1) (ib) then the requirement of the two year period would have to be complied with. But if the relief is being sought under S. 9, then this further requirement of two years apart from establishing the ingredients of desertion is not necessary. S. 23A of the Act does not make any mention with regard to the fact that desertion must continue for any speficied period. As such the respondent is entitled to a relief of restitution of conjugal rights if she can establish the desertion as required u/s 9 of the Act.
(10) It is also pertinent to note that the respondent has in her written statement as filed on 12th December, 1979, stated in paragraph 3 as follows :
“ON 21.5.79, the respondent was ultimately driven out of her house in three clothes by the petitioner and his parents after snatching of her belongings and the……………from the respondent. After vacating Ashok Vihar house on 21.5.79, she was not permitted to live in the Rajpur Road house nor any other house was taken.”
(11) It is, therefore, clear that she has made this assertion with regard to desertion on 21st May, 1979, at the earliest stage. Therefore, it is not a case of the respondent completely altering her stand. Further, since the whole purpose of introducing section 23A is to shorten litigation and avoid multiplicity of proceedings, it is open to the respondent to amend the written statement and make a counter-claim u/s 9 praying for restitution of conjugal rights.
(12) In any case, even if there were some ambiguity in the language of section 23A, it is clear that it would be advisable to permit the respondent to file a counter-claim for restitution of conjugal rights in the facts and circumstances of this case.
(13) It is not disputed, as indeed it cannot, that the respondent would be entitled to file a separate petition for restitution of conjugal rights. If such a petition were filed, it would in the normal course have to be filed in the District Court. As the proceedings u/s 13 have been transferred to this court, the respondent would then have to make an application for transfer of the petition u/s 9 of the Act to this court. Thereafter, the respondent would have to make an application for consolidation of the petition u/s 9 with petition u/s 13 filed by the petitioner. Rather than saving any time, all this would take more time and cause greater delay.
(14) Whether, the respondent will eventually be entitled to a decree for restitution of conjugal rights will depend on the evidence adduced in the proceedings. However, at the present stage it is only necessary to examine whether the respondent-wife is entitled to make a counter-claim in view of the provisions of section 23A of the Act. It would appear to me, as above noticed, that she is so entitled.
(15) The petitioner will not be prejudiced if the respondent is permitted to amend the pleadings as prayed for. The amendment would also enable the real question in issue to be decided and avoid multiplicity of proceedings. The application appears to be bonafide as it would in the ultimate analysis result in the controversy between the parties being disposed of expeditiously and once and for all.