Respondent can’t seek declaration of petitioner’s “second marriage” in a divorce proceeding; Relief can’t be prayed qua third party under Section 23A HMA: SC

Supreme Court: In a case where a woman had, by way of counter claim in a marriage petition filed by her husband for dissolution of the marriage, sought to declare her husband’s alleged second marriage to be “illegal, void and voidable” and son born out of the said “adulterous” relationship illegitimate, the bench of MR Shah* and AS Bopanna, JJ has held that no such relief qua the third party can be prayed as per Section 23A of the Hindu Mariage Act, 1955.

Factual background

The respondent-husband filed a Hindu Marriage Petition before the Family Court under Section 13 of the Hindu Marriage Act for dissolution of marriage, mainly on the ground that the appellant-wife is guilty of cruelty.

According to the appellant-wife, the respondent-husband deserted her and their son on 9.2.2006 and the respondent-husband refused to provide maintenance for her and their son.

It was also her case that the respondent-husband as on today is cohabiting with another woman, openly moves around with the said woman and introduces the said lady as his new wife and is travelling not only in the country but abroad with her and also has a son with her. Since the respondent-husband wants to marry the said woman, a false and fabricated story is placed before the Court.

She, hence, prayed that:

  • the marriage between the petitioner with the said woman dated 14.12.2006 is illegal, void and voidable and that the respondent-husband and the said woman are living in adultery.
  • son born through the said marriage is the illegitimate child of the petitioner.

Section 23A of the Hindu Marriage Act

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.

Analysis

Holding that no relief can be prayed qua the third party under Section 23A of the Hindu Marriage Act, the Court explained that by way of counter claim, the respondent in any proceedings for divorce or judicial separation or restitution of conjugal rights can pray for the relief by way of counter claim only those reliefs which can be prayed and/or granted under the Hindu Marriage Act, namely,

  • Section 9 (Restitution of conjugal rights);
  • Section 10(judicial separation);
  • Sections 11 & 12(declaration of marriage between the petitioner and the respondent void)
  • Section 13 (divorce).

Therefore, the respondent to the aforesaid proceedings can pray for the aforesaid reliefs only by way of counter claim and that too between the petitioner and the respondent.

Since 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, therefore, it was not open for the appellant-wife to seek declaration to the effect that the marriage between the respondent-husband and the third party is void. Further, no relief can be prayed by way of counter claim even against the son born out of the alleged wedlock between the respondent-husband and the third party.

The Court, however, explained that in such a situation, the only remedy available to the appellant would be to file a substantive suit and/or initiate independent proceedings claiming such reliefs.

“At the most, the appellant herein – original defendant by way of counter claim could have claimed the relief and prayed for divorce and/or judicial separation on the ground of husband’s adultery. Beyond that, no relief which cannot be granted under the provisions of the Hindu Marriage Act can be claimed by way of counter claim.”

[Nitaben Dinesh Patel v. Dinesh Dahyabhai Patel, 2021 SCC OnLine SC 902, decided on 07.10.2021]


Counsels

For appellant-wife: Advocate Puneet Jain

For respondent-husband: Senior Advocate Mihir Thakore and Advocate Aastha Mehta


*Judgment by: Justice MR Shah

Know Thy Judge | Justice M. R. Shah

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