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Report No. 59

2.44. Section 23A (new), Relief to the Respondent on petition for divorce.-

There is a proposal to insert a new section permitting the court to give relief to the respondent who opposes a petition for divorce on the ground of the petitioner's adultery, cruelty or desertion. The proposal is that the court may give him the same relief to which he would have been entitled if he had filed a petition. Of course, the relief must be based on that particular ground-this is implicit, though the proposal does not state so. The precise proposal sent to us for consideration is that after section 23 of the Hindu Marriage Act, the following section should be inserted:-

"23A. Relief to Respondent on petition for divorce.-If in any proceeding for divorce under this Act, the respondent opposes the relief sought on the ground of the petitioner's adultery, cruelty or desertion, the court may give to the respondent the same relief to which he or she would have been entitled if he or she had presented a petition seeking such relief".

We do not see any objection to the substance of the proposal in so far as it goes, but there are certain matters of detail or language which we would like to deal with.

2.44A. We may, for example, point out that the words "the same relief" (used in the proposal1 of the Ministry) create an ambiguity. In a petition for divorce, the respondent should have a right to counter claim not only for divorce ("same relief") but also for judicial separation, or, for that matter, any other appropriate relief. The respondent need not be confined to claiming divorce only. There is another point. The proposition that the defendant may counter-claim is not directly brought out. Contrast the provision in the Parsi Marriage & Divorce Act, 1936 quoted below2:-

"37. In any suit under this Act, the defendant may make counter-claim for any relief he or she may be entitled to under this Act".

There is obvious advantage in bringing it out more directly.

1. Para. 2.44, supra.

2. Section 37, Parsi Marriage and Divorce Act, 1936.

Hindu Marriage Act, 1955 and Special Marriage Act, 1954 Back

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