NDLI: Nitaben Dinesh Patel Vs. Dinesh Dahyabhai Patel

Content Provider	Supreme Court of India
e-ISSN	30484839
Language	English
Access Restriction	NDLI
Subject Keyword	Hindu Marriage Act 1955 – s.23A
Content Type	Text
Resource Type	Law Judgement
Jurisdiction	India
Act(s) Referred	Hindu Marriage Act, 1955 (25 of 1955)
Case(s) Referred	Referred Case 0 Referred Case 1 Referred Case 2 Referred Case 3
Case Type	Appeal
Court	Supreme Court of India
Disposal Nature	Appeal Allowed
Headnote	Hindu Marriage Act, 1955 – s.23A – Proceedings for divorce or judicial separation or restitution of conjugal rights – Counter- claim for relief – Scope – Held: By way of counter claim, the respondent in any proceedings for divorce or judicial separation or restitution of conjugal rights can pray for relief by way of counter claim only those reliefs which can be prayed and/or granted under the Hindu Marriage Act – The respondent to such proceedings can pray for reliefs only by way of counter claim and that too between the petitioner and the respondent – No relief can be prayed qua a third party – Under the provisions of the Hindu Marriage Act, the relief of divorce, judicial separation etc. can be between the husband and the wife only and cannot extend to the third party – On facts, by virtue of s.23A of the Hindu Marriage Act, it was not open for the wife (original defendant) to seek declaration to the effect that the marriage between the husband (original plaintiff) and a third party was void – No relief could be prayed by way of counter claim even against the son born out of the alleged wedlock between the husband-original plaintiff and the said third party – In such situation, the only remedy available to the wife–original defendant would be to file a substantive suit and/or initiate independent proceedings claiming such reliefs – At the most, the wife–original defendant by way of counter claim could have claimed relief and prayed for divorce and/or judicial separation on ground of husband’s adultery – No relief which cannot be granted under the provisions of the Hindu Marriage Act could not be claimed by way of counter claim. Code of Civil Procedure, 1908 – Order VIII, r.6A – Counter- claim by defendant – Tenability – Held: It is true that as per Order VIII Rule 6A CPC, a defendant in a suit may, in addition to his right of pleading a set-off under rule 6, set up, by way of counter-claimagainst the claim of the plaintiff, any right or claim in respect of a cause of action accruing to the defendant against the plaintiff either before or after the filing of the suit but before the defendant has delivered his defence or before the time limited for delivering his defence has expired, whether such counter-claim is in the nature of a claim for damages or not – However, in the present case, according to appellant-wife (defendant), the cause for counter claim (in divorce proceedings initiated by the husband) had accrued after she had delivered her defence (written statement) and more particularly when during cross-examination of the plaintiff (respondent-husband) the factum of marriage with another woman was admitted and the marriage certificate was produced – High Court, therefore, was not justified in refusing to allow the counter claim proposed by appellant-wife (defendant) – Hindu Marriage Act, 1955 – s.23A. Code of Civil Procedure, 1908 – Order VI Rule 17, proviso – Amendment of pleadings – Restrictions as per proviso to Order VI Rule 17 – When not applicable – Held: It is clear from the proviso to Order VI Rule 17 that no application for amendment shall be allowed after the trial has commenced unless the court comes to the conclusion that in spite of due diligence the party could not have raised the matter before the commencement of trial – Therefore, if some facts have come to the knowledge subsequently and subsequent to the commencement of trial, may be during the course of trial and if it is found that it is necessary for the purpose of determining the real questions in controversy between the parties, on a fair reading of Order VI Rule 17 CPC, such an application for amendment can be allowed even after the trial has commenced – Pleadings – Amendment.
Judge	Hon'ble Mr. Justice Mukeshkumar Rasikbhai Shah
Neutral Citation	2021 INSC 629
Petitioner	Nitaben Dinesh Patel
Respondent	Dinesh Dahyabhai Patel
SCR	[2021] 8 S.C.R. 618
Judgement Date	2021-10-07
Case Number	5901-5902

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Nitaben Dinesh Patel Vs. Dinesh Dahyabhai Patel

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