Case BriefsSupreme Court

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.


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]


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

Case BriefsHigh Courts

Bombay High Court: A Division Bench of Pradeep Nandrajog, CJ and Bharati Dangre, J. while allowing the present appeals with regard to failure in showing sufficient cause to seeking review with a delay of 2680 days, stated that,

“It needs no rocket science for anyone to infer that probably the respondent got a premonition that it might lose.”

Facts pertinent to the issue

An agreement was entered between the appellants and respondent, wherein the respondent was to supply bunker fuel to the appellant’s vessel M.T. Antikeros at Mudra Port.  After the respondent supplied the same, 12 days later a dispute arose between the parties regarding the quantity and quality of the fuel. After about a month, the appellant claimed for damages. Respondent denied the liability and raised a counter-claim.

Appellant on 19-03-2009, invoked the arbitration clause, with a view to save arbitration costs, proposed a sole arbitrator. Appellant appointed R.S. Cooper as its arbitrator and called upon the respondent to do likewise. Respondent failed to respond to appoint an Arbitrator. Later Single Judge of the Bombay High Court pursuant to an application filed by the appellant for appointment of an arbitrator on behalf of respondent disposed of the same by appointing J.K. Bhatt as an Arbitrator on 21-04-2011.

The above-stated arbitrator’s appointed T.V. Shanbhag as the Presiding Arbitrator.

On 19-09-2013, Arbitral Tribunal settled the issues which arose for determination.

Respondents challenged the Jurisdiction of the tribunal. Later on 03-08-2018, respondents while filing an application seeking to recall the order passed by the tribunal on 03-07-2013, as also the order dated 19-09-2013, by which order issues were settled.

Though, the tribunal rejected the above application. Further, the respondents challenged the order passed by Single Judge of the Bombay High Court regarding the appointment of J.K. Bhatt as an Arbitrator.

On 30-8-2018 the respondent filed a petition seeking review of the order dated 21-04-2011 passed by this Court. It also sought 7 years delay in filing the Review Application to be condoned.

On 22-03-2018, the impugned order was passed condoning delay of 7 years in seeking review of the order dated 21-04-2011 and simultaneously recalling the said order of appointment of J.K. Bhatt as an Arbitrator on behalf of the respondent.

“Torpedo shot by the respondent on 30-08-2018 hit its target. The Arbitral Tribunal came to be hit, in that, its constitution was blasted by the torpedo fired by the respondent.”

On noting the stated facts, Single Judge noted that the subject matter of the application being an international commercial arbitration the appropriate fora was the Supreme Court of India and thus, the order dated 21-04-2011 was a nullity and is non-est.

Where a Court acts under an appealable provision of law and passes an order, a party is not deprived of the right of appeal, though on the facts the order should not have been passed under that provision

High Court noted that the impugned order being passed in exercise of the review jurisdiction by the Single Judge both the appeals are maintainable.

Court observed that

prior to the amendment of the Act by the Arbitration & Conciliation (Amendment) Act 2015 brought into force with effect from 01-01-2016 when in sub-section 4, 5 & 6 of Section 11 of the Act the words ‘the Chief Justice or any person or institution designated by him’ wherever they occur were replaced by the words ‘the Supreme Court or, as the case may be, the High Court or any person or institution designated by such Court’, the position was that under the Act the procedure for appointment in case of sub-section 3 being applicable was to file an application before the Chief Justice of a High Court or any person or institution designated by him, in a case of domestic arbitration and before the Chief Justice of India or any person or institution designated by him in International Commercial Arbitration.

Section 11 of the Arbitration Act was a Judicial Power was held in 7-Judge Bench decision of the Supreme Court S.B.P. & Co. v. Patel Engineering Ltd., (2005) 8 SCC 618.

Thus, on perusal of the above-stated analysis and facts, Bench held that Single Judge had no jurisdiction to entertain the petition seeking review of the order dated 21-04-2011.

Further, Court stated that, the impugned order is vitiated when it proceeds to condone the delay by not considering whether the sufficient cause was shown to condone the delay of 2680 days in seeking review of the above-stated order.

“Whilst it may be true that an order passed in a lis or an issue which cannot be taken cognizance of by a Court or an authority is void and non-est, but that does not mean that a party can sleep over its rights and participate in further proceedings and one fine day approach the Court or the authority to rectify the error.”

Hence, respondents failed to show sufficient cause entitling it to 2680 days delay in seeking review of the order dated 21-04-2011 to be condoned.

The torpedo fired by the respondent is declared to be a dude and it sinks without hitting its target.

Appellant would be entitled to costs incurred before the Single Judge as also in the instant appeals which bench quantified at Rs 5 lakhs. [Antikeros Shipping Corpn. v.  Adani Enterprises Ltd., 2020 SCC OnLine Bom 277, decided on 18-02-2020]

Uttarakhand High Court
Case BriefsHigh Courts

Uttaranchal High Court: A Division Bench of Sudhanshu Dhulia and Narayan Singh Dhanik, JJ. contemplated the special appeals preferred against the judgment of Family Court, where the divorce petition was filed under Section 13 of Hindu Marriage Act, 1955 and was subsequently dismissed but the counterclaim of the wife-respondent for the right of residence was decreed in the favor of the respondent. 

Facts giving rise to the instant appeal were that the appellant and respondent were married. After the marriage, matrimonial discord occurred between the parties and the appellant ultimately filed suit for divorce on the ground of cruelty. The Court below framed certain issues such as, ‘whether behavior of the respondent had been cruel, relief available to the appellant, whether the respondent had the right to reside in the residence of the appellant and whether, in lieu thereof, she was entitled to get the decree for residence right in the disputed property where she was residing?’ Hence, the Court below examined the evidences, dismissed the suit for divorce and decreed the counter-claim of the respondent for the right of residence. The Court had opined that the act of the respondent did not qualify as ‘Cruelty’ so the appellant was not entitled to a divorce. 

The Court observed that the efforts were made to mediate between the parties but no fruitful outcome was possible. In terms of the compromise, the appellant had to pay an amount of rupees seventeen lakhs and fifty thousand, as permanent alimony, to the respondent and after the payment of the said amount, the respondent agreed to vacate the residence in question and both the parties agreed for dissolution of their marriage, with appropriate petition to be filed later before the Family Court. The respondent, however, now had a second thought about the matter as she contended that the amount decided was not enough to get her a decent accommodation in Dehradun.

The High Court further observed that reasons given by the Court below for dismissing the suit for dissolution of marriage was not sustainable and the finding of the Court below that there was no cruelty on the part of the respondent was perverse. The evidence was placed before the trial court and scrutinized. The appellant in his deposition had said that the respondent often used to quarrel with his daughter and eventually started then living in a separate room in the same house and stopped talking to any of the members of the family. It was further contended by the appellant that she used to cook food only for herself, and that too separately, she frequently hurled abuses on her husband and even threatened to implicate him in a false case of dowry.

The Court found that the appellant in his evidence had narrated in detail; the incidents of alleged cruelty suffered by him and as a cumulative effect of the same, any reasonable man would find his life unbearable with his/her spouse. “Cruelty can be both physical as well as mental. Since we are dealing here with human beings and human emotions, cruelty or even “legal cruelty” cannot be precisely defined. What we can say, however, is that cruelty or cruel treatment is something which makes the life of other spouses unbearable. We are convinced that based on the allegations and the evidence submitted by the appellant before the Family Court, a case of cruelty was made out.” The entire body of evidence led before the trial court, had to be evaluated in the light of the conduct of the wife. The conduct of a person has an important bearing in terms of Section 8 of the Evidence Act, 1872. Hence, the appeals were allowed and divorce was granted with an order of permanent alimony. [Raghuveer Kaintura v. Meera Kaintura ,2019 SCC OnLine Utt 718, decided on 07-08-2019]

Case BriefsHigh Courts

Orissa High Court: The Bench of Biswanath Rath, J. entertained the writ petition challenging the order passed by the learned trial Court, directing for recounting of votes of the elected candidate.

The instant writ petition was filed referring to the pleadings in the election dispute which arose before the trial court. The said petition was filed by the elected candidate who pleaded to set aside the order of the trial court confirming the decision of the Election Tribunal for recounting of votes involving the petitioner.

The petitioner contended that in absence of any counter claim for the recounting of the votes of the petitioner by the defeated candidate, votes in favour of opposite party should only be recounted and the rejected votes should be examined. The petitioner wanted the court to interfere in the impugned order and to set aside the same.

The respondent relied on the direction passed by the tribunal for recounting of the votes of the petitioner i.e the elected candidate and hence, did not wish to file any counter claim against the elected candidate.

Perusing the records, the Court opined that, there was no counterclaim involving the allegation for counting of votes in favour of the petitioner and as it was not pleaded in the written statement the tribunal must not had decided the particular issue i.e recounting of the votes of the elected candidate. The Court held, that the Election Tribunal has exceeded its jurisdiction by traveling beyond the scope of litigation involved therein. The Court further directed the Tribunal to conclude the dispute of the miscellaneous case by giving both the parties an equal opportunity of hearing.[Ritarani Jena v. Sumaatee Jena, 2019 SCC OnLine Ori 173, Order dated 02-04-2019]

Kerala High Court
Case BriefsHigh Courts

Kerala High Court: A Single judge bench comprising of R. Narayana Pisharadi, J. while dealing with an appeal filed against an order dismissing the petition for divorce, held that the dismissal of a suit does not have the effect of automatically terminating proceedings in the counter-claim.

In the present case, respondent- husband had filed a petition in the Family Court for granting decree of divorce. The appellant- wife filed a written statement along with counter-claim against her respondent and his parents for the return of her ornaments. The divorce petition was dismissed for default and hence the present appeal was filed by the appellant contending that the Family Court did not dispose of her counter-claim.

Relying on the judgment of  Apex Court in Rajni Rani v Khairati Lal, (2015) 2 SCC 682, the court stated that a plain reading of Order VIII Rules 6-A (2) and 6D of the Code of Civil Procedure, 1908 would reveal that a counter-claim preferred by the defendant in a suit is in the nature of a cross-suit and the statute clearly states that even if the suit is dismissed, counter-claim remains alive for adjudication. It was observed that the seminal purpose for the adoption of this approach was to avoid piece-meal adjudication.

Consequently, High Court directed the Family Court to proceed with the counter-claim filed by the appellant against the respondent and dispose it of as expeditiously as possible. On being apprised that the respondent had filed an application in Family Court for restoration of the divorce petition, the court observed that in the event that the said application is allowed, petition for divorce and the counter-claim be disposed of together by the same judgment as required under Order VIII Rule 6-A (2) CPC. [Raji Mohan v Aji A.S.,2018 SCC OnLine Ker 3487, decided on 27-09-2018]

Case BriefsHigh Courts

Delhi High Court: A Single Judge Bench comprising of Pratibha M. Singh, J., rejected the counter claim filed by the defendant holding it to be barred by limitation under Section 55 of Limitation Act.

The Plaintiff had filed a recovery suit against the defendants for non-payment of dues on completion of a construction work. The defendants filed a counter claim on the ground that the plaintiff left the work in between and they had to engage a third party contractor for completion of work. The counter claim was opposed by the petitioner contending that it was barred by limitation under Section 55, as any claim of compensation has to be filed within a period of three years as prescribed by the section. The defendants took a stand that the breach committed by the plaintiff continued till the time the third party contractor completed the work.

The High Court perused the record and held, the fact that the defendants had to engage third-party contractors would not extend the period of limitation in so far as the plaintiff was concerned, as the date of abandonment was a complete cause of action in itself.  Relying on Supreme Court decision in Bal Krishna Savalram Pujari v. Dayaneshwar Maharaj Sansthan, AIR 1959 SC 798, the High Court observed that the engagement of new contractors could not extend the period of limitation as the concept of limitation is not elastic to include the conduct of third parties. On the said reasoning, the Court rejected the counter claim of the defendants as time-barred. The matter was directed to be listed before appropriate District Judge. [KLA Construction Technologies (P) Ltd. v. Chadha Sugar and Industries (P) Ltd.,2018 SCC OnLine Del 10226, decided on 30-07-2018]




Telangana High Court
Case BriefsHigh Courts


Hyderabad High Court: In the instant appeal, the question arose that whether a counter-claim can be rejected in terms of Order VII, Rule 11 of CPC, to which the Bench of V. Ramasubramanian, J., held that in addition to the parameters provided in Order VII, Rule 11 of CPC, the Court must examine while dealing with a prayer for rejection of the counter-claim, as to whether the rejection of the counter-claim would have the effect of striking off the defence and rendering the defendant defenceless. It was also observed that at the stage of invoking Order VII, Rule 11 CPC, the Court is not concerned with the merits of the claim. But while dealing with a written statement, the Court will certainly consider the merits of the claim

As per facts of the present case, an eviction suit was filed by the respondents against the appellants. The respondents claimed that a shop was taken on lease by the father of the appellant/defendant in December, 2003 and subsequently took over the shop; and that the appellant/defendant committed default in payment of rent from April, 2015 and therefore after issuing an eviction notice dated 23-12-2015, the respondents/plaintiffs were forced to file the suit for eviction. The appellant contended that the lease was for 25 years and that therefore he was not liable to be evicted. In addition the appellant/defendant also made a counter-claim by seeking a decree for the relief of specific performance of the registration of the lease deed. The respondents/plaintiffs however made a request to the trial court to reject the counter-claim in terms of Order VII, Rule 11 of CPC which was accepted by the trial court, thereby resulting in the present second appeal.

Perusing the facts of the case and the provisions of CPC, the Bench observed that Order VIII, Rule 6-A(4) CPC clearly states that a counter-claim shall be treated as a plaint and governed by the rules applicable to plaints, therefore, the applicability of Order VII, Rule 11 CPC to counter-claims cannot be ruled out. Generally a counter-claim which consists of the defence to the plaintiffs claim and another comprising of the counter-claim and the survival of one does not depend upon the other; it may be possible to apply Order VII, Rule 11, however in cases where defence to a suit and the counter- claim are joined in such a manner as “Siamese twins”, with an inherent danger to the survival of the defence to the suit, upon the rejection of the counter-claim, the Court must do something more than what Order VII, Rule 11 generally mandates. Noting the provisions laid down under Order VIII, Rule 6-A(1) sub-rule (2), Order VIII, Rule 6-A, Order VIII Rule 6-A sub-rule (4) and Order VIII, Rule 6-C of CPC, the Court observed that a counter-claim is not exactly the same as a plaint, despite having the traits of a plaint and the scheme of Order VIII, Rules 6-A to 6-G of CPC itself recognises the fact that there could be two different scenarios, one where the counter-claim could be intertwined with the defence and another where it is capable of being prosecuted as an independent suit. [Jinendra Jewellers v. B.Venkateswara Rao, 2017 SCC OnLine Hyd 442,  decided on 15.12.2017]