IMPORTANT POINT
The court emphasized the importance of interpreting Section 23A of the Hindu Marriage Act and highlighted that the issue of maintenance does not fall within the scope of a counter-claim as contemplated under Section 23A.

ORDER :

1. This petition is filed under Articles 226 and 227 of the Constitution of India challenging the order passed below Application Exhibit-150 in Family Suit No. 534 of 2012 by the learned Family Court, Vadodara on 25.01.2024.

2. Upon joint request of the learned advocates for the respective parties, this petition is taken up for final hearing.

3. Heard learned advocate Mr. B.J. Trivedi for petitioner and learned advocate Ms. Kirti S. Pathak for respondent.

4. Learned advocate for the respondent has placed on record the reply dated 14.04.2024, which is taken on record.

4.1 The brief facts of the case are that the present petitioner- original plaintiff has filed a Family Suit No. 534 of 2012 before the learned Family Court, Vadodara under Section 13(i) of the Hindu Marriage Act, 1955 (for short hereinafter referred to as the ‘Act’) for a decree of divorce on the ground of cruelty. Defendant-present respondent appeared and filed Written Statement-cum-Counter-claim vide Exhibit-13 and raised various contentions. Issues were framed by the learned Family Court at Exhibit-63 on 18.08.2017. Thereafter, affidavit-in-lieu of examination-in-chief was filed by the petitioner. During the course of cross-examination, defendant submitted an application at Exhibit-150 on 09.11.2023 seeking to recast the issues which were framed at Exhibit-63. The said application was heard and the learned Family Court allowed the application on 25.01.2024.

5. Being aggrieved and dissatisfied with the impugned order, present petitioner is before this Court.

6. Learned advocate for the petitioner has submitted that petitioner has filed a Family Suit under Section 13(i) of the Act for a decree of divorce on the ground of cruelty, wherein various allegations are levelled against the respondent. The suit was contested by the respondent-wife by filing Written Statement-cum-Counter-claim at Exhibit-13. In the counter-claim, one of the contentions was regarding maintenance of the respondent- wife. The plaintiff filed affidavit-in-lieu of examination-in-chief. The cross-examination of the plaintiff was started and during the course of cross-examination, the application at Exhibit-150 came to be submitted seeking to recast the issues and sought to add the issue of maintenance.

6.1. It is further submitted that the learned Family Court has committed a grave error in the eye of law by allowing the application. Learned advocate for the petitioner has placed reliance upon Section 23A of the Act, which is reproduced herein-below:

“23A. Relief for respondent in divorce and other proceedings.-In any proceeding for 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 that 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.”

By placing reliance upon the aforesaid section, he has submitted that respondent is permitted not only to oppose the reliefs sought on the ground of petitioner’s adultery, cruelty or desertion but also can file a counter-claim for any relief under this Act on that ground. It is further submitted that the proposed issues which have been framed by the learned Family Court is totally against the settled principles of law and also against the provisions of Section 23A of the Act.

6.2. In support of his contentions, learned advocate for the petitioner has placed reliance upon the decision of Nitaben Dinesh Patel vs. Dinesh Dahyabhai Patel, 2021 Law Suit (SC) 619.

6.3. It is further submitted by the learned advocate for the petitioner that the application for recasting of issues was submitted at a very belated stage and when the issues were framed at Exhibit-63, there was no request