‘Counterclaim akin to a cross-suit, can proceed independently’: Allahabad HC allows counterclaim to proceed after withdrawal of main suit

Allahabad High Court

Allahabad High Court: In an appeal filed by the wife, against the husband, challenging the decision of the, Family Court regarding the continuation of the husband’s counterclaim after the withdrawal of the divorce petition, the Division Bench of Vivek Kumar Birla and Syed Qamar Hasan Rizvi, JJ., held that irrespective of whether the main suit has been dismissed, a counterclaim may nevertheless be proceeded with.


The wife initiated divorce proceedings under Section 13(1)(ia) of the Hindu Marriage Act, 1955. In response, the husband filed a counterclaim seeking custody of a child born during their marriage, under Section 23(a) of the Act. During the proceedings, the wife filed a withdrawal application under Order XXIII Rule 1(3) of the Code of Civil Procedure (‘CPC’), seeking to withdraw the divorce petition.

The husband did not oppose the withdrawal application but requested that his counterclaim be allowed to proceed independently. The Court allowed the wife’s withdrawal application but permitted the husbands counterclaim to proceed as an independent petition.

The wife contested the decision, arguing that since the principal suit (divorce petition) was withdrawn, the husband’s counterclaim should not proceed.

Decision and Analysis

The Court analysed relevant provisions of the CPC, emphasizing that a counterclaim is treated as a separate cause of action and can proceed independently. The Court noted that the wife did not object to the counterclaim during its filing or the framing of issues.

The Court interpreted Rule 6-D of Order VIII of the CPC, concluding that the withdrawal of the suit constitutes discontinuance, allowing the counterclaim to proceed.

The Court referred to the case of Hulas Rai Baijnath v. K.B. Bass and Co. Ltd. 1961 SCC OnLine All 186, wherein it was held that a counterclaim can be heard even if the suit is withdrawn, and that a counterclaim could stand independently as a separate plaint even after the withdrawal of the main suit.

The Court further cited Rajni Rani v. Khairati Lal, (2015) 2 SCC 682, which clarified the nature of a counterclaim, highlighting that a counterclaim is akin to a cross-suit and can proceed independently even if the main suit is dismissed.

Consequently, the Court dismissed the appeal, affirming the decision to allow the respondent’s counterclaim to proceed independently.

[Ishita Dua v. Tarun Kumar Sharma, 2024 SCC OnLine All 1729, Order dated 24-04-2024]

Advocates who appeared in this case :

Advocate for the Appellant: Aditya Bhushan Singhal

Must Watch

maintenance to second wife

bail in false pretext of marriage

right to procreate of convict

Criminology, Penology and Victimology book release

Join the discussion

Leave a Reply

Your email address will not be published. Required fields are marked *

This site uses Akismet to reduce spam. Learn how your comment data is processed.