ORDER
A.S. Anand, C.J.
1. This revision petition is directed against an order of the learned District Judge, Jammu, dated 2-11-1985, whereby he has dismissed an application filed by the petitioner seeking withdrawal of the petition filed by her under Section 9 of the Hindu Marriage Act.
2. The parties to the petition were married on 17-1-1974 but subsequently it appears, their relations became strained. The petitioner filed a petition under Section 9 of the Jammu and Kashmir Hindu Marriage Act (hereinafter referred to as the Act) in the Court of learned District Judge, Jammu, seeking a decree of restitution of conjugal rights. It appears that the respondent had earlier filed a petition under Section 9 of the Act in the Court of District Judge, Jammu, which was pending when the petitioner filed her petition because the fact of the pendency of the husband's petition was not known to the petitioner.
3. The petition filed by the petitioner was transferred for its disposal to the learnedSecond Addl. District Judge, Jammu, but the petition filed by the respondent continued to remain on the file of the District Judge, Jammu. Subsequently, it transpires, both the petitions were transferred to the Court of District Judge, Jammu. The parties appeared and were directed to file objections to the petitions filed against them by each other. Before the respondent could file his objections to the petition filed by the petitioner, the petitioner filed an application before the learned District Judge, Jammu, on 13-8-1985, stating therein that since a petition under Section 9 of the Act had been filed by the respondent against her and the respondent was carving out a ground for getting a decree of divorce after obtaining a decree under Section 9 of the Act, therefore, she desired that the petition filed by her may be dismissed as withdrawn. The application for withdrawal was resisted by the respondent who filed his objections on 26-8-1985. Vide impugned order the learned District Judge, Jammu, dismissed the application of the petitioner seeking withdrawal of the petition under Section 9 of the Act holding that since a counter-claim had been made under Section 29 of the Act by the respondent, the petitioner could not be allowed to withdraw the main petition.
4. Appearing for the petitioner, Mr. J.P. Singh, submitted that the interpretation placed by the learned District Judge on Section 29 of the Act was erroneous and that in the instant case, the petition filed by the respondent, which was prior in point of time, could not even otherwise be said to be a counter-claim to the petition filed by the petitioner and since both the petitions had sought the same relief and had been filed independently by both the parties, the petition filed by the wife was an independent proceeding and she was entitled not to pursue it. He further submitted that since the Code of Civil Procedure, to the extent it is not in consistent with the provisions of the Act, is applicable to the proceedings under the Hindu Marriage Act, the learned District Judge could not in view of the provisions of Order XXIII, C.P.C. compel the petitioner to pursue her case when she did not want to proceed with it. Learned counsel, however, did not question the validity of the other findings recorded by the learned DistrictJudge, rejecting some other prayers of the petitioner.
5. Mr. R.P. Bakshi, learned counsel for the respondent has, on the other hand, argued that the petition filed by the respondent was in the nature of a counter-claim and in case the petitioner was permitted to withdraw the petition filed by her, the respondent's case would be seriously prejudiced and urged that the petitioner could not be permitted to withdraw the case at her sweet will.
6. I have given my anxious consideration to the respective contentions raised at the bar.
7. That both the husband and the wife have filed separate petitions under Section 9 of the Act seeking restitution of conjugal right is a matter which is not in dispute. It is also not denied that the husband had filed his petition prior in point of time.
8. Thus, the short question which requires determination in this petition is the interpretation and scope of Section 29 of the Act and the meaning of the expression 'counter-claim as occurring therein. The said section reads as follows : --
'29. Relief for respondent in divorce and other proceedings : -- In any proceeding for a divorce or judicial separation or restitution of conjugal rights, the respondent may not only oppose the relief sought on the ground of petitioner's adultery, cruelty or desertion, but also make a counter-claim for any relief under this Act on the ground; and if the petitioner's adultery, cruelty or desertion is proved the Court may give to the respondent any relief under this Act to which he or she would have been entitled if he or she had presented a petition seeking such relief on that ground.'
Section 29 (supra) on its plain reading provides that in any proceeding for divorce or judicial separation or restitution of conjugal rights, the respondent to the petition may not only oppose the relief sought by the petitioner on the ground of the petitioner's own adultery, cruelty or desertion but may also make a 'counter-claim' for any relief under the Act and in the even the petitioner's adultery, cruelty or desertion is proved, theCourt may give to the respondent any relief to which he or she may be entitled had he or she filed an independent petition seeking relief on that ground. The object of the section appears to be to avoid multiplicity of the proceedings and it gives to the respondent to the proceedings, a right not only to oppose the relief claimed by the petitioner but also to claim a relief to which he or she may consider to be entitled by filing a counter-claim alleging the petitioner's own adultery, cruelty or desertion, as the case may be. This section comes into play only where the respondent opposes the relief sought by the petitioner and through a counter-claim asks for a relief in his or her own right on the ground of petitioner's adultery, cruelty or desertion.
9. 'Counter-claim' is, generally speaking, a weapon of offence and enables the respondent to enforce a claim against the petitioner as effectively as an independent action. The claim must be 'Counter' and not 'complementary', and the expression 'counter' implies 'opposite' and not the 'same'. Law Lexicon -- by Venkataramaiya Vol. I Second Edn. 1978-83 p. 550, defines a counter-claim as under :
'.....On the other hand, counter-claim is realty a weapon of offence and enables a defendant to enforce a claim against the plaintiff as effectively as an independent action. The main purpose of allowing a defendant to set up a counter-claim is to avoid multiplicity of proceedings between the parties.'
In Black's Law Dictionary (4th Edn.) requisites of a counter-claim have been explained as follows : --
' It's sole requisites are that it must tend to defeat or diminish plaintiffs demand, and that demand must be reciprocal.'
10. A perusal of the order of the learned District Judge under challenge, and the record of the case reveal that both the husband and wife had filed separate petitioners but claiming the same relief, that is, the restitution of conjugal rights. The petition of either of the parties under Section 9 of the Act could, therefore, by no stretch of imagination, be treated as a counter-claim to the petition filed by the other party because acounter-claim has to be a cause of actionseeking affirmative relief aimed not only todefeat the petitioner's cause of action but toclaim a relief which negatives the petitioner'splea. The effect of a counter-claim would bethat the counter-claim would be treated forall intents and purposes as not only resistingthe grant of relief to the petitioner but alsoseeking a distinct relief against the petitioner.The essential pre-requisite for a defence toacquire the flavour of a counter-claim is thatit must be aimed at defeating the demand ofthe plaintiff or in any event diminishing thatdemand. In the instant case, the wife'spetition did not fall in that category. It wasnot a counter-claim but a claimcomplementary to the relief sought by thehusband The learned District Judge fell inerror in treating the petition filed by the wifeas a counter-claim and refusing permission toher to withdraw her petition.
11. With the withdrawal of the petition filed by the wife, which as already noticed, was an independent one filed in ignorance of the petition preferred by the husband, no prejudicial effect, let alone a serious effect, could fall on the petition filed by the husband under Section 9 of the Act. That petition shall have to be disposed of on its own merits and the withdrawal of the petition filed by the wife would not effect its continuation.
12. Strictly speaking, therefore, the provisions of Section 29 (supra) were not applicable to the facts and circumstances of the present case and the order of the learned District Judge rejecting the prayer of the petitioner to withdraw her petition wasclearly erroneous. Under Order XX III, C.P.C., she was entitled and legallycompetent to withdraw the petition filed by her and she could not be compelled to pursue her case.
13. Thus, for what has been said above, this revision petition is partly allowed The order of the learned District Judge, rejecting the application of the petitioner seeking to withdraw her petition filed under Section 9 of the Act, is set aside and she is permitted to withdraw the said petition. It is clarified that withdrawal of the petition filed by her will not in any way, affect the continuation of the independent petition filed by the respondent against her under Section 9 of the Act.
14. Parties, through their learned counsel are directed to appear before the learned trial Court on Mar. 16, 1987.