A good que. you raised into grey areas under marriage Laws (rightly said not many decisions exists on S. 23 A HMA) simple reason being “matrimonial wrong and or misconduct” is difficult to prove by alleging side.
Anyhow, that besides the point lets cover up the issue in hand;
1. To begin with like to know where proposed S. 23 A HMA is about to file does it come under proper Family Court Act or is it a regular Matrimonial Court? I suppose you know the radical difference in functioning of both nature of Courts?
2. What I feel is that under the scheme of S. 23 (1)(a) of the Act, the lady will raise preliminary objections that you are not entitled for a decree of divorce. In short the lady (side) will vehemently oppose making it look like it is the case of the appellant that the respondent was trying to take advantage of his own wrong. The word "wrong" is crucial word which you need to overcome.
A. Let us scuffle through her ground seeking divorce which is simply filed on the basis of cruelty. Right? Her further claims would be that you have done certain acts of cruelty resulting into seeking remedy under S. 498a IPC and associated IPC section which I guess she might have got charge sheeted under therein. Right ? Her further claims would be that as per settled position of law there has no been no decree in divorce proceedings announced so you cannot raise a counter claim and it is premature stage hence your counter claim suit is bound to get dismissed. I mean I am just raising few of the preliminary objections she would raise and not mean to scare you and from my side go ahead raise counter claims U/s 23 A HMA by all means.
Here I give my opinion on matrimonial 'wrong' as justification to sail through;
B. To constitute a "wrong" in terms of S. 23 of the Act, there has to be a positive act and/or action / conduct which is more than disinclination to cohabit on the part of the husband to frustrate decree for divorce and such a case has to be made out by you while opposing her petition for divorce should be there. Meaning thereby you have to shuffle now the W/s that you filed before when she filed for Divorce ! If there are gaping holes in your W/s then you pass the test and if you didnot oppose then your this S. 23 A HMA suit will become infructious is my opinion.
C. In order to be a `wrong', the conduct of the husband should be something more than mere disinclination to agree to an offer of re-union i.e. RCR plea in w/s, it must be a misconduct so as to justify denial of relief.
D. Here to constitute "wrong" one also need to see subsequent events pending divorce must also be considered for doing complete and substantial justice to such counter suit i.e. under S. 23 A HMA is my additional views.
E. Now you should gain access to Amendments in HMA till date and here I am pointing to 1964 Amendment and the limited object and effect of the Amendment introduced by Act No. 44 of 1964. The amendment was not introduced in order that the provisions contained in S. 23 HMA should be abrogated and that is not the effect of the amendment.
F. The purpose of the amendment and the effect of sub-section (1-A) of S. 13 HMA can be appreciated by reference to the provisions contained in S. 13 HMA itself. In the first place the opening words of sub-section 13 provide a sharp contrast, and a comparison of the respective provisions of the two sub-sections would show that the object of sub-section (1-A) was merely to enlarge the right to apply for divorce and not to make it compulsive that a petition for divorce presented under sub-section (1-A) must be allowed on mere proof that there was no cohabitation or restitution for the requisite period. See there is where the catch in your favour rests !
G. Now, it is clear on a comparison of the opening words of the above Re. two sub-sections, that all that sub-section (1-A) deals with is the right to apply for a decree of divorce. It does not provide that a petition for dissolution of a marriage by a decree of divorce shall be allowed on proof of either of the two conditions mentioned in that sub- section. Once it is appreciated that the object of the amendment by which sub-section (1A) was introduced in S. 13 HMA and by which clauses (viii) and (ix) were deleted from sub-section (1) of that section is merely to confer a right to apply for divorce on both the parties to the marriage irrespective of whether the decree for judicial separation or the decree for restitution of conjugal rights or even decree in divorce proceedings was obtained by this or that party.
H. Hence there would be no difficulty in holding that the provisions contained in S. 13(1-A) are subject to those contained in S. 23(1) HMA. I hope you are getting now the argumentative logic ?
I. So S. 23(1) HMA provides that "in any proceeding" under the Act, if the Court is satisfied regarding the facts and circumstances mentioned in clauses (a) to (e) of sub-section (1), "then and in such a case, but not otherwise, the Court shall decree such relief accordingly." The very language of this sub-section shows that it governs every proceeding under the Act and a duty is cast on the Court to decree the relief sought only if the conditions mentioned in the sub-section are satisfied, and not otherwise.
J. In my further opinion in fact, it is difficult to see how one can make any distinction between sub-sections (1) and (1A) of S. 13 HMA in so far as the applicability of S. 23(1) HMA is concerned ! Sub-section (1) of S. 13 HMA is clearly subject to the provisions contained in S. 23(1) HMA. If that be so, sub-section (1A) would equally be so subject. There is nothing in the language of the two sub-sections to justify the view that sub- sections to justify the view that sub-section (1), but not sub-section (1-A) is subject to the provisions of S. 23(1) HMA."
K. I hope now you got the pleading logics, now no Court is satisfied unless some masala is thrown into it so in the case of Re. Savitri Pandey vs. Prem Chandra Pandey [(2002) 2 SCC 73, the Hon'ble Supreme Court held,
"13. In any proceedings under the Act whether defended or not the court would decline to grant relief to the petitioner if it is found that the petitioner was taking advantage of his or her own wrong or diability for the purposes of the reliefs contemplated under S. 23(1) of the Act. No party can be permitted to carve out the ground for destroying the family which is the basic unit of the society.
L. Also Re. to Division Bench of Mumbai High Court decision in the case of Sunita Rajendra Nikalje vs. Rajendra Eknath Nikalje [1996 (1) Mh.L.J. 572], after referring to the decision in the case of Dharmendra Kumar Vs. Usha Kumar [AIR 1977 SC 2218], the Mumbai HC elaborated the meaning of the word "wrong" in the following words:
"..........`wrong' means only serious or grave misconduct on the party of the party seeking divorce or relief against the other. It is not necessary that there should be fresh marital offence. It depends upon the facts and circumstances of each case to judge whether it was `worng' or not. Take the case where the party makes accusation of adultery or infidelity or brings about a situation to make, it impossible for one party to resume cohabitation or causes injury to other or is living with another woman/man or gives threats scaring the other party. There is some such positive conduct after the decree for restitution of conjugal rights is passed. Mere disinclination or reluctance to accept the other spouse is not sufficient. There should be attempt of making it impossible for a spouse to resume cohabitation after the decree for restitution of conjugal rights is passed. Discretion is conferred to strike a balance. The Court should not grant the decree lightly or defeat it when the marriage is broken down completely. All this is necessary to be viewed against the backdrop of facts and circumstances of each case."
M. But always be very careful when applying under S. 23 A HMA as various Court have opined that S. 23(1)(a) of the Act is couched in negative terms and burden always lay upon the petitioner (here in this case you) to prove that he/she was not taking advantage of his/her own 'wrong'. So get over the first hurdle before Bench while admission stage that you are not taking advantage of any 'wrong' is all that I can say while suggestively trying to make sense to help you out in asked briefs.
All the best
BTW: How was taste of 7 Up last Saturday J