Counter claims in matrimonial disputes are independent and must be considered separately, even if the main petition is dismissed.

ORDER

The petitioner is before this Court calling in question an order dated 09-02-2023, passed by the III Additional Principal Judge, Family Court, Bengaluru in M.C.No.3081 of 2021 dismissing the petition filed by the respondent/husband for its non-prosecution.

2. Heard Sri V.Shashi Kiran, learned counsel appearing for the petitioner.

3. Brief facts that lead the petitioner to this Court in the subject petition, as borne out from the pleadings, are as follows:-

The petitioner is the wife of the respondent. The two get married on 29-10-2003. From the wedlock, the couple have two children. On 05-07-2021, owing to certain disputes between the couple, the husband initiates proceedings seeking dissolution of marriage under Section 13 (1)(ia) of the Hindu Marriage Act, 1955 (‘the Act’ for short). In the said proceedings, the petitioner/wife files her objections along with a counter claim against the prayers that were sought in accordance with law by paying appropriate fee. The husband did not contest the matter for long time. The Court noticing the fact that the husband has been absent throughout, granted time finally till 09-02-2023. Owing to the fact that the husband did not appear before the Court, the petition is dismissed for its non-prosecution. The order reads as follows:

“Petitioner is absent.

Advocate for petitioner present and prays time, reporting that he petitioner is not responding to their call and they have no instructions. Sufficient time already granted. No grounds for adjournment. Hence prayer rejected.

Kept by.

No representation.

Petitioner and counsel called out absent.

Perused the records.

This is the petition filed under Section 13 (1)(ia) of Hindu Marriage Act on 05-07-2021. The petition is pending for evidence of petitioner since 21-10-2022. In spite of several opportunities from October, 2022, petitioner failed to step into the witness box and to adduce his evidence. Petitioner continuously remained absent before the Court. It appears that the petitioner is not interested to proceed with the matter. No grounds for adjournment.

Hence, petition is dismissed for default and non-prosecution.

Ordered to return the original documents to the concerned as per rules.”

In terms of the afore-quoted order, the concerned Court failed to give any finding upon the counter claim so filed by the petitioner in the very matrimonial case in M.C.No.3081 of 2021, on the ground that the concerned Court construed that counter claim also to be rejected along with the main petition. Being aggrieved, the petitioner/wife is knocking at the doors of this Court in the subject petition.

4. The learned counsel appearing for the petitioner submits that the counter claim is an independent proceeding and the concerned Court, notwithstanding dismissal of main petition filed by the husband, ought to have rendered a finding on merits of the counter claim. That having not been done, is an error committed by the concerned Court is the emphatic submission of the learned counsel for the petitioner.

5. The afore-narrated facts are not in dispute. The issue in the lis is, whether the concerned Court would take up the counter claim in the teeth of dismissal of the main petition filed by one of the parties?

6. The petition under Section 13 (1)(ia) of the Act is instituted by the husband. Likewise, the wife also registers a counter claim under Section 23A r/w. Section 13 (1)(ia) of the Act. Therefore, it was an independent claim under the statute. For the folly of the husband in not prosecuting his petition, the counter claim filed by the wife could not have been ignored by the concerned Court, while dismissing the case of the husband for its non-prosecution. The counter claim ought to have been i