The affected party in a marriage is entitled to avail the provisions of section 11 of the Hindu Marriage Act, and a counter-claim is maintainable under section 23-A of the Act.

Headnote:
Counter-claim - Hindu Marriage Act - Section 11, 23-A - 11, 5, 23-A
Fact of the Case:

The petitioner, a wife, challenged the rejection of her counter-claim under section 23-A of the Hindu Marriage Act (HMA) for declaring her husband's second marriage as illegal and void. The husband had filed for divorce on grounds of cruelty and the wife's conviction for murder of their child. The wife filed the counter-claim during the pendency of the divorce petition.
Finding of the Court:

The court found that the wife, being the first wife, was the affected party by the husband's second marriage, and thus entitled to avail the provisions of section 11 of the HMA. The court also noted that the counter-claim was maintainable under section 23-A of the Act.
Issues: The issues revolved around the legality of the wife's counter-claim under section 23-A of the HMA and the interpretation of sections 11, 5, and 23-A of the Act.
Ratio Decidendi: The court held that the wife, as the first party, was affected by the husband's second marriage and thus entitled to avail the provisions of section 11 of the HMA. It also emphasized that the counter-claim was maintainable under section 23-A of the Act.
Final Decision: The court allowed the petition, set aside the impugned order, and directed the Family Court to decide the counter-claim filed by the petitioner/wife and proceed to deal with the same in accordance with the law after serving a fresh notice upon the respondent.

ORDER : – With consent of learned counsel for the parties, heard finally.

2. By the instant petition filed under Article 227 of the Constitution of India, the petitioner / wife is challenging the legality, validity and propriety of the impugned order dated 3-8-2018 (Annexure-P/1) passed in C.S. No. 220-A of 2015 by learned 1st Additional Principal Judge, Family Court, Jabalpur, rejecting the counter-claim as not maintainable filed by the petitioner / wife under section 23-A of the Hindu Marriage Act for declaration of second marriage of the respondent / husband as illegal and void.

3. The facts lying in the narrow compass are that the parties are Hindus by faith. They got married to each other on 20-5-2007 and out of their wedlock, one baby child begotten. On 20-2-2015 the respondent - husband has filed a civil suit under section 13(1)(ia) of the Hindu Marriage Act for dissolution of marriage on the ground of cruelty and also on the ground that the petitioner-wife has been convicted under sections 302 and 203 of the IPC for committing murder of her own child aged about 6 months and has been sentenced to undergo imprisonment for life vide judgment dated 28-9-2016 in S.T. No. 753/14 by this Court. The petitioner/wife has already filed written statement on 8-5-2015 denying the allegations made by the respondent/husband. During the pendency of the instant suit, the husband is said to have entered into another wedlock with a girl namely Jaya in the month of January, 2017 and he is said to have now procreated a respectable sized family and immediately thereafter when this fact came into knowledge of the wife and her parents, the petitioner/wife through her father filed a counter-claim under section 23-A of the Hindu Marriage Act for declaring the second marriage of her husband as illegal and void ab initio under section 11 of the Hindu Marriage Act. However, the learned Family Court by the impugned order has rejected the counter-claim of the petitioner-wife as not maintainable holding that the petitioner-wife is a third party and under section 11 of the HMA, the counter-claim is not maintainable because only either party to the marriage can seek relief to declare marriage null and void. However, a liberty is afforded to the wife to file civil suit separately to declare marriage as null and void.

4. Learned counsel for the petitioner/wife submits that during the pendency of the divorce petition, the respondent - husband performed bigamous with a girl namely Jaya in the year 2017, whereas the petitioner/wife is in jail. The petitioner - wife as soon as came to know about such fact, she filed a counter-claim under Order 8, Rule 6A of the C.P.C. on 12-7-2017 before the trial Court for declaration of the second marriage of her husband as illegal and null and void. The said counter-claim was found not maintainable by the trial Court and the same was rejected vide order dated 18-12-2017 and the petitioner/wife challenged the aforesaid order by filing a Madhya Pradesh No. 87/18 before this Court but the same was withdrawn with liberty to file afresh application under appropriate Provision of section 23-A of the Hindu Marriage Act vide order dated 13-4-2018. At the strength of the order passed by this Court, the petitioner - wife filed a counter-claim under section 23-A of the Hindu Marriage Act before the Family Court seeking relief to declare the marriage between respondent and Jaya as null and void but the learned Family Court vide impugned order dated 3-8-2018 dismissed the counter-claim of the petitioner - wife as not maintainable stating that the respondent/wife is a third party, therefore, under section 11 of the Hindu Marriage Act, the counter-claim is not maintainable. However, the respondent was at liberty to file a civil suit separately to declare the marriage as null and void.

5. Learned counsel for the petitioner further submits that the impugned order is illegal, arbitrary, contrary to the law and the same has been passed witho

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