The court affirmed the statutory right to file a counter claim under Section 23-A of the Hindu Marriage Act, ruling that procedural misapplication by the Family Court warranted restoration of the counter claim.

JUDGMENT :

ARINDAM SINHA, J.

1. Appellant is husband appearing in person. He is aggrieved by order dated 9th April, 2024 made by the Family Court, also dismissing his counter claim filed in the civil proceeding instituted by respondent-wife. He submits, the Family Court erred in applying judgment of the Supreme Court in Ramesh Chand Ardawatiya vs Anil Panjwani , reported in (2003) 7 SCC 350 . Having had filed written statement, he did not seek amendment thereto but additionally had filed counter claim. Impugned judgment be reversed in appeal.

2. None appears on behalf of respondent-wife. By order dated 8th May, 2024 we had directed issuance of notice of appeal. Appellant duly complied by putting in the requisites. The postal article has been returned bearing postal endorsement, ‘refused’. Hence, there has been good service and respondent goes unrepresented.

3. Considering appellant appears in person, we looked at the brief. It appears, respondent-wife had filed for divorce. Part of the order sheet of the Family Court stands disclosed in the appeal papers. It appears from impugned order dated 9th April, 2024, inter alia, appellant had filed his written statement on 21st September, 2022 and thereafter his counter claim on 10th October, 2023.

4. The civil proceeding instituted by respondent-wife in the Family Court was for dissolution of the marriage. Appellant, who was respondent therein, also counter claimed for dissolution of the marriage. We have to first see whether the counter claim was maintainable. For the purpose section 23-A in Hindu Marriage Act, 1955 is reproduced below.

“ 23-A. 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.”

(emphasis supplied)

It will appear from above reproduced provision that when a spouse as petitioner files for divorce, the other spouse as 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 the Act, on that ground.

5. We reproduce paragraph 13 from the wife’s petition for divorce.

“13. That, since the date of marriage the opp. party is deliberately refusing taking to take care of the petitioner, and did not maintain the minimum marital obligations rather habituated in misbehaving, ill-treating, and tarnishing the societal reputation of the petitioner by inflicting physical as well as mental cruelty against the petitioner, that in the meanwhile number of efforts have been made and lastly on 06.05.2018 by the petitioners father to wellness of the family of her daughter but in vein.” Appellant filed written statement and opposed allegation of cruelty as would appear from paragraph 13 in the written statement, reproduced below.

“13. That the averments made in Para-13 are false and fabricated and she is put to strict proof of the same. The Opp. Party has fulfilled all her marital obligations and always cooperated and supported the Petitioner in her every endeavor.”

6. By his counter claim appellant also claimed dissolution of the marriage on ground of cruelty and desertion. Paragraphs 58 and 59 of his counter claim are reproduced below.

“58. Thus the Petitioner’s aforesaid conduct amounts to cruelty towards the Opp. Party which has caused unimaginable suffering and pain to him. That further the Petitioner is guilty of infidelity and cruelty as she kept in contact with her previous lover Nishant Bhaskar Mishra even after marriage with the Opp. Party which caused immense mental agony