Counter Claim By Husband Will Proceed Even If Wife Withdraws Divorce Petition: Must Be Dealt With Independently: Allahabad HC
The Allahabad High Court has observed that a counter-claim filed by a husband will proceed even if the wife withdraws the divorce petition and such counter-claim must be dealt with separately and independently.
An Appeal was filed by the Appellant-Wife assailing the judgment passed by the Family Court under Section 13(1)(ia) of the Hindu Marriage Act, 1955(‘Act’) only to the extent whereby the counter-claim of the Respondent-Husband had been permitted to proceed on its own as an independent petition.
The Division Bench of Justice Vivek Kumar Birla and Justice Syed Qamar Hasan Rizvi observed, “In the present case, the Withdrawal Application was not opposed on the condition clearly put forth that the counter-claim shall proceed, in other words, it is only on this condition the same was not opposed. Therefore, it is clear that there was a conditional acceptance to the withdrawal of the suit that the counter-claim shall remain alive…It is, therefore, clear that the proceedings of the counter-claim are treated as suit proceedings. The provisions of Rule 7 of Order VIII CPC provides that once the defendant relies upon several distinct grounds of defence or set-off or counter-claim founded upon separate and distinct facts, they shall be stated, as far as may be separately and distinctly.”
Advocate Aditya Bhushan Singhal appeared for the Appellant.
In the present case, the Wife filed a divorce petition and a counter-claim was filed by the Husband under Section 23(a) of the Act for custody of a girl child born out of wedlock. Subsequently, a withdrawal application under Order XXIII Rule (1)(3) read with Section 151 of the Civil Procedure Code, 1908 was filed by the Wife, which was allowed by the impugned order. The Husband did not object to the application as long as his counterclaim was proceeded by the Family Court.
While relying on the provisions of the CPC under Order VIII and definitions of ‘Abandonment’, ‘Counter-Claim’ and ‘Discontinue’ under the Black’s Law Dictionary and the Legal Glossary, the Court held, “The words used are absolutely clear on this issue, however, provision also reflects that cause of counter-claim shall be disclosed in the counter-claim as they are mentioned in the plaint to which the plaintiff has right to file written statement. Rule 6-C clearly provides for exclusion of counter-claim and it says that where a defendant sets up a counter-claim and the plaintiff contends that the claim thereby raised ought not be disposed of by way of counter-claim but in an independent suit, the plaintiff may, at any time before issues are settled in relation to the counter-claim, apply to the Court for an order that such counter-claim may be excluded and the Court may, on the hearing of such application make such order as it thinks fit.”
The Court said that Order VIII Rule 6-E of the CPC provides that if the plaintiff defaults in putting in a reply to the counter-claim made by the defendant, the Court may pronounce judgment against the plaintiff concerning the counter-claim made against him, or make such order in relation to the counter-claim as it thinks fit. Further, it said that Rule 6-G provides that the rules relating to a written statement by a defendant shall apply to a written statement filed in answer to a counter-claim.
The Court also relied on the views taken by the Apex Court in Rajni Rani & Anr. vs. Khairati Lal & Ors. (2015), Allahabad High Court in Hulas Rai Baijnath vs. K.B. Bass and Co. Ltd. (1963) and Madras High Court in O.N. Raju vs. K. Krishnan (2018).
Accordingly, the Court dismissed the appeal.
Cause Title: Ishita Dua v. Tarun Kumar Sharma (Neutral Citation: 2024:AHC:79757-DB)
Appearances:
Appellant: Advocate Aditya Bhushan Singhal