NITABEN DINESH PATEL versus DINESH DAHYABHAI PATEL on 7 October 2021

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SUPREME COURT REPORTS

[2021] 8 S.C.R.

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NITABEN DINESH PATEL

v.

DINESH DAHYABHAI PATEL

(Civil Appeal Nos. 5901-5902 of 2021)

BOCTOBER 07, 2021

[M. R. SHAH AND A. S. BOPANNA, JJ.]

Hindu Marriage Act, 1955 – s.23A – Proceedings for divorceor judicial separation or restitution of conjugal rights – Counter-claim for relief – Scope – Held: By way of counter claim, theCrespondent in any proceedings for divorce or judicial separationor restitution of conjugal rights can pray for relief by way of counterclaim only those reliefs which can be prayed and/or granted underthe Hindu Marriage Act – The respondent to such proceedings canpray for reliefs only by way of counter claim and that too betweenDthe petitioner and the respondent – No relief can be prayed qua athird party – Under the provisions of the Hindu Marriage Act, therelief of divorce, judicial separation etc. can be between the husbandand the wife only and cannot extend to the third party – On facts,by virtue of s.23A of the Hindu Marriage Act, it was not open forthe wife (original defendant) to seek declaration to the effect thatEthe marriage between the husband (original plaintiff) and a thirdparty was void – No relief could be prayed by way of counter claimeven against the son born out of the alleged wedlock between thehusband-original plaintiff and the said third party – In suchsituation, the only remedy available to the wife–original defendantFwould be to file a substantive suit and/or initiate independentproceedings claiming such reliefs – At the most, the wife–originaldefendant by way of counter claim could have claimed relief andprayed for divorce and/or judicial separation on ground ofhusband’s adultery – No relief which cannot be granted under theprovisions of the Hindu Marriage Act could not be claimed by wayGof counter claim.

Code of Civil Procedure, 1908 – Order VIII, r.6A – Counter-claim by defendant – Tenability – Held: It is true that as per OrderVIII Rule 6A CPC, a defendant in a suit may, in addition to his rightof pleading a set-off under rule 6, set up, by way of counter-claimH

against the claim of the plaintiff, any right or claim in respect of acause of action accruing to the defendant against the plaintiff eitherbefore or after the filing of the suit but before the defendant hasdelivered his defence or before the time limited for delivering hisdefence has expired, whether such counter-claim is in the nature ofa claim for damages or not – However, in the present case, accordingto appellant-wife (defendant), the cause for counter claim (indivorce proceedings initiated by the husband) had accrued aftershe had delivered her defence (written statement) and moreparticularly when during cross-examination of the plaintiff(respondent-husband) the factum of marriage with another womanwas admitted and the marriage certificate was produced – HighCourt, therefore, was not justified in refusing to allow the counterclaim proposed by appellant-wife (defendant) – Hindu MarriageAct, 1955 – s.23A.

Code of Civil Procedure, 1908 – Order VI Rule 17, proviso –Amendment of pleadings – Restrictions as per proviso to Order VIRule 17 – When not applicable – Held: It is clear from the provisoto Order VI Rule 17 that no application for amendment shall beallowed after the trial has commenced unless the court comes to theconclusion that in spite of due diligence the party could not haveraised the matter before the commencement of trial – Therefore, ifsome facts have come to the knowledge subsequently and subsequentto the commencement of trial, may be during the course of trial andif it is found that it is necessary for the purpose of determining thereal questions in controversy between the parties, on a fair readingof Order VI Rule 17 CPC, such an application for amendment canbe allowed even after the trial has commenced – Pleadings –Amendment.

Partly allowing the appeals, the Court

Conclusion

Partly allowing the appeals, the Court

HELD:1. Order VI Rule 17 CPC provides for amendmentof the pleadings. The Court may at any stage of the proceedingsallow either party to alter or amend his pleadings (includingwritten statement) in such manner and on such terms as may bejust, and all such amendments shall be made as may be necessaryfor the purpose of determining the real questions in controversybetween the parties. Proviso to Order VI Rule 17 CPC further AB

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Aprovides that no application for amendment shall be allowed afterthe trial has commenced, unless the Court comes to theconclusion that in spite of due diligence, the party could not haveraised the matter before the commencement of the trial.Therefore, if some facts have come to the knowledgesubsequently and subsequent to the commencement of trial, mayBbe during the course of trial and if it is found that it is necessaryfor the purpose of determining the real questions in controversybetween the parties, on a fair reading of Order VI Rule 17 CPC,such an application for amendment can be allowed even after thetrial has commenced. In the present case, the factum of actualCmarriage on 14.12.2006 came to the knowledge of the appellant-wife when the marriage certificate was produced during the cross-examination of the respondent-husband and immediatelythereafter the application for amendment was made. Therefore,as such, and looking to the case on behalf of the appellant, sopleaded in the written statement, the Family Court was right andDjustified in allowing the amendment. The High Court committederror in misapplying the proviso to Order VI Rule 17 CPC anderred in rejecting the amendment. [Para 7][635-B-D; 636-A-D]

2.1. Now so far as the amendment sought, for incorporatingprayer to declare the second marriage of respondent as illegal,Evoid, voidable etc. is concerned, it was in the form of counter-claim. It is true that as per Order VIII Rule 6A CPC, a defendantin a suit may, in addition to his right of pleading a set-off underrule 6, set up, by way of counter-claim against the claim of theplaintiff, any right or claim in respect of a cause of action accruingFto the defendant against the plaintiff either before or after thefiling of the suit but before the defendant has delivered his defenceor before the time limited for delivering his defence has expired,whether such counter-claim is in the nature of a claim for damagesor not. However, in the present case, according to the appellant, the cause for counter claim had accrued after the appellant-Gdefendant has delivered her defence (written statement) and moreparticularly when during the cross-examination of the plaintiff(respondent herein) the factum of marriage with ‘H’ on 14.12.2006was admitted and the marriage certificate was produced.

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Therefore, the High Court is not justified and/or right in refusingto allow the counter claim as proposed on the ground that thesame is not permissible after the appellant as defendanthas delivered her defence by filing the written statement.[Para 8][636-D-H]

2.2. However, by way of counter claim, the respondent inany proceedings for divorce or judicial separation or restitutionof conjugal rights can pray for the relief by way of counter claimonly those reliefs which can be prayed and/or granted under theHindu Marriage Act, namely, the relief under Section 9(Restitution of conjugal rights); Section 10 (judicial separation);Sections 11 & 12 (declaration of marriage between the petitionerand the respondent void) and Section 13 (divorce). Therefore,the respondent to the proceedings in question can pray for theaforesaid reliefs only by way of counter claim and that too betweenthe petitioner and the respondent. No relief can be prayed quathe third party. Under the provisions of the Hindu Marriage Act,the relief of divorce, judicial separation etc. can be between thehusband and the wife only and cannot extend to the third party.Therefore, by virtue of Section 23A of the Hindu Marriage Act, itis not open for the appellant– original defendant to seekdeclaration to the effect that the marriage between the respondent– original plaintiff and the third party – ‘H’ is void. No relief canbe prayed by way of counter claim even against the son born outof the alleged wedlock between the respondent – original plaintiffand the third party – ‘H’. In such a situation, the only remedyavailable to the appellant would be to file a substantive suit and/or initiate independent proceedings claiming such reliefs. Butsuch reliefs cannot be claimed by way of counter claim underSection 23A of the Hindu Marriage Act in the petition for divorcefiled by the respondent against the appellant. At the most, theappellant– original defendant by way of counter claim could haveclaimed the relief and prayed for divorce and/or judicial separationon the ground of husband’s adultery. Beyond that, no relief whichcannot be granted under the provisions of the Hindu MarriageAct can be claimed by way of counter claim. [Para 9][637-F-H;638-A-F]

Andhra Bank v. ABN Amro Bank (2007) 6 SCC 167 ;Chander Kanta Bansal v. Rajinder Singh Anand (2008)

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A5 SCC 117 : [2008] 4 SCR 748; Abdul Rehman v. Mohd.Ruldu (2012) 11 SCC 341 : [2012] 8 SCR 922 ;Gurbakhsh Singh v. Buta Singh (2018) 6 SCC 567;Ashok Kumar Kalra v. Wing Commander SurendraAgnihotri (2020) 2 SCC 394; Ajendraprasadji N.Pandey v. Swami Keshavprakeshdasji N. (2006) 12BSCC 1 : [2006] 10 Suppl. SCR 477; M. Revanna v.Anjanamma (dead) by Lrs. (2019) 4 SCC 332; Vidyabaiv. Padmalatha (2009) 2 SCC 409 : [2008] 17 SCR 505– referred to.

Damodar v. Urmila, AIR 1980 Raj. 57 – approved.C

From the Judgment and Order dated 27.09.2019 of the High CourtFof Gujarat at Ahmedabad in R/Special Civil Application Nos.11379 and16101 of 2018.

Puneet Jain, Ms. Christi Jain, Advs. for the Appellant.

Mihir Thakore, Sr. Adv., Ms. Aastha Mehta, Tirathraj Pandya,Jaimin Dave, Ms. Vishakha, Ms. Prema Mohapatra, Ms. DeepanwitaGPriyanka, Advs. for the Respondent.

The Judgment of the Court was delivered by

M. R. SHAH, J.

1. Feeling aggrieved and dissatisfied with the impugned commonHjudgment and order dated 27.09.2019 passed by the High Court of Gujarat at Ahmedabad in SCA No. 11379/2018 and SCA No. 16101/2018, bywhich the High Court has dismissed writ petition being SCA No. 11379/2018 and has allowed SCA No. 16101/2018 and has quashed and setaside the order passed by the learned Family Court dated 8.5.2018 passedbelow the application (Exhibit 281) in Family Suit No. 862/2007, theoriginal writ petitioner in SCA No. 11379/2018 and the original respondentin SCA No. 16101/2018 has preferred the present appeals.

2. The facts leading to the present appeals in nutshell are as under:

2. The facts leading to the present appeals in nutshell are as under:

The marriage between the appellant and the respondent took placeon 1.3.1987 according to the Hindu rites. Out of the said wedlock, theyhad a child, named as ‘Devashya’ on 3.5.1990. The appellant was also adoctor, but it was the case on behalf of the appellant that after the birthof the child she stopped practising as a doctor and remained housewife.The dispute arose between the husband and the wife and the respondent-husband filed a Hindu Marriage Petition No. 862 of 2007 before thelearned Family Court under Section 13 of the Hindu Marriage Act fordissolution of marriage, mainly on the ground that the appellant-wife isguilty of cruelty. The learned Family Court issued notice. The appellant-wife appeared and filed reply (Exhibit 9) on 11.4.2008. A rejoinder affidavitwas also filed by the respondent-husband (Exhibit 10) on 22.9.2008.The appellant further submitted an affidavit-in-sur-rejoinder as Exhibit13 in the month of November, 2008. The respondent-husband also filedan affidavit of evidence on record. According to the appellant-wife, therespondent-husband deserted her and their son on 9.2.2006 and therespondent-husband refused to provide maintenance for her and theirson.

2.1 At this stage, it is required to be noted that in the writtenstatement filed by the appellant-wife, it was the case on behalf of theappellant that the respondent-husband as on today is cohabiting withanother woman, openly moves around with the said woman and introducesthe said lady as his new wife and is travelling not only in the country butabroad with her. It was the case on behalf of the appellant-wife in thewritten statement that since the respondent-husband wants to marry thesaid woman, a false and fabricated story is placed before the Court.However, in the rejoinder affidavit filed by the respondent-husband, sostated in para 20, it was the case on behalf of the respondent-husbandthat so far as Ms. Hinaben Manubhai Panchal is concerned, the saidlady is a manager in the hospital run by him and she is looking after the AB

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Ahospital and accounts as her job, which has nothing to do with the presentdispute between the parties. It was the case on behalf of the appellantthat subsequently she got to know that the respondent-husband hadmarried the aforesaid Ms. Hinaben Manubhai Panchal and hassuppressed the said fact, she filed an application (Exhibit 281) seekingamendment in her written statement by adding paras 35,36 & 37, whichBread as under:

“Para No.35:

The opponent submits that the petition married with one HinabenManubhai Panchal on 14.12.2006 at Sudama resort, Paldi,CAhmedabad. The opponent stated that after the marriagesolemnized between the petitioner and Hinaben, the petitioner filedthe petition for divorce in the month of July 2007 against theopponent. The petitioner never informed to the Hon’ble Courtthat he married with Hinaben on 14.12.2006. When the petitionwas filed that time the petitioner intentionally suppress materialDfacts with malafide intention. When the petitioner did not comebefore the Hon’ble Court with clean hand than the petitioner petitionis legally not tenable under the provisions of the law. Moreover,due to the marriage life with Hinaben, the petitioner have havingillegitimate son Dev, who is as on today residing with the petitioner; The petitioner stated that there is no divorce granted in favour ofthe petitioner by the Hon’ble Court or the by the family court andopponent are as today alive even though the petitioner marriedwith Hina Panchal, only for sex purpose. Even the petitioner goneto many places of the World with Hina and they were residing togather because the petitioner accepted Hina as wife.

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Moreover, the petitioner went to so many places with in India,either for honeymoon purpose or for enjoyment. The petitioner ason today living the life in adultery therefore the divorce cannot begranted in favour of the petitioner. Moreover, the person whodoes not come before the Hon’ble Court with clean hands are notGentitled any relief from the Court. Therefore, the petition filed bythe petitioner are require to dismiss with cost.

The opponent states that as on today the marriage between thepetitioner and the respondent are continued, no divorce are grantedby any court even though the petitioner married with Hina PanchalHon 14.12.2006.

Therefore, the marriage between the petitioner and Hina ManubhaiPanchal are illegal, void and voidable. Therefore, there is anecessary to declare by Court that the marriage between thepetitioner and Hinaben Manubhai Panchal are illegal, void andvoidable. Therefore, the present counter claim application are filedby the petitioner.

Para No.36:-

The respondent states that by doing the marriage by petitionerwith Hinaben Panchal, it is a fraud with the respondent andtherefore the provision of the limitation are not applicable in thepresent matter.

The opponent states that the cause of action of the counter claimis arisen when the petitioner done the second marriage withHinaben Manubhai Panchal. The cause of action is continue dayto day for declaring between the petitioner and Hinaben marriageillegal, void, voidable. Moreover the cause of action have arisenwhen the respondent have come to know that the petitioner haveintentionally done the fraud with the respondent by doing the secondmarriage with Hinaben Panchal. Even when the first marriagebetween the petitioner and respondent are continued. Moreovertill the second between the petitioner and Hinaben Panchal arenot declare illegal, void and voidable till that the cause of action ofthe counter claim are continued. The marriage between thepetitioner and Hinaben Panchal are illegal, void and voidabletherefore the cause of action of the present counter claimapplication are arisen in the jurisdiction of this Court.

Para No.37:-

Therefore, the respondent prays that,

a.Your Honor may allow the present counter claim applicationand declare that the marriage between the petitioner withHina Manubhai Panchal dated 14.12.2006 are illegal, voidand voidable. Further declare that Hina Panchal is not thelegal wife of the petitioner and also declare that the petitionerare living with Hina Panchal in adultery.

b.Your Honor may declare that son Dev, born through thepetitioner and Hinaben Panchal marriage life is illegitimatechild of the petitioner.

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Ac.Your Honor grant any other relief which your Honor thinkproper and reasonable.

d.Cost of this application.

e.The proper court fees are affixed upon the application.”

B2.2 By order dated 8.5.2018, the learned Family Court partlyallowed the said application (Exhibit 281) and allowed the amendmentsby permitting the appellant-wife to incorporate paras 35 and 36 in thewritten statement and refused to permit the appellant-wife to amend thewritten statement as per para 37. At this stage, it is required to be notedthat before the learned Family Court, the appellant-wife in support ofCher prayer to permit the amendment by adding para 37 heavily reliedupon the provisions of Section 23A of the Hindu Marriage Act.

2.3 Aggrieved by the order passed by the learned Family Courtrejecting her prayer to add the prayer clause in terms of para 37 andrefusing to permit the amendment in terms of para 37, the appellant-Dwife preferred SCA No. 11379/2018 before the High Court.Simultaneously, the respondent-husband also challenged the order passedby the learned Family Court allowing and/or permitting the appellant-wife to add paras 35 and 36 in the written statement before the HighCourt being SCA No. 16101/2018. By the impugned judgment and order,Ethe High Court has allowed the respondent-husband’s writ petition beingSCA No. 16101/2018 and dismissed the appellant-wife’s writ petitionbeing SCA No. 11379/2018 on the ground that the amendment could notbe allowed at this belated stage. However, the High Court in the impugnedjudgment and order has observed that the appellant can file a separatesuit seeking for a declaration that the second marriage of the respondent-Fhusband is void.

2.4 Feeling aggrieved and dissatisfied with the impugned commonjudgment and order passed by the High Court, rejecting the application(Exhibit 281) preferred by the appellant-wife and not permitting theamendment as per paras 35, 36, and 37 in the written statement, theGappellant-wife has preferred the present appeals. At this stage, it isrequired to be noted that the proposed prayer in terms of para 37 todeclare that the second marriage between the respondent-husband andHinaben Manubhai Panchal dated 14.12.2006 is illegal, void and voidablewas as a counter claim and for that Section 23A of the Hindu MarriageAct was relied upon.H

3. Shri Puneet Jain, learned Advocate has appeared on behalf ofthe appellant-wife and Shri Mihir Thakore, learned Senior Advocate,assisted by Ms. Aastha Mehta, learned Advocate, has appeared for therespondent-husband.

3.1 Shri Puneet Jain, learned Advocate appearing on behalf of theappellant has vehemently submitted that the marriage between theappellant and the respondent was solemnized on 1.3.1987 and a childnamed ‘Devashya’ was born.

3.2 It is submitted that during the subsistence of the marriage, therespondent-husband developed illicit relationship with one HinabenManubhai Panchal. The respondent-husband filed a petition under Section13 of the Hindu Marriage Act on 6.8.2007 seeking divorce from theappellant. The fact regarding his entering into a marriage with theaforesaid Hinaben Manubhai Panchal on 14.12.2006 was deliberatelysuppressed by the respondent-husband. It is submitted that however atthe relevant time the fact of illicit relationship of the respondent withHinaben Manubhai Panchal was only known to the appellant and specificsubmissions/averments were made in the written statement dated19.6.2008.

3.3 It is submitted that in the rejoinder affidavit, as such, therespondent-husband did not specifically deny the allegations of illicitrelationship with Hinaben Manubhai Panchal but submitted that so faras Ms. Hinaben Manubhai Panchal is concerned, the said lady is amanager in the hospital run by him and she is looking after the hospitaland accounts as a job.

3.4 It is submitted that when the rejoinder affidavit was filed in2008, the respondent-husband did not disclose the factum of marriageon 14.12.2006 between the respondent-husband and the said HinabenManubhai Panchal. It is submitted therefore and thus the appellant wasnot aware about the respondent’s entering into the marriage with HinabenManubhai Panchal earlier. It is submitted that it came on record duringthe cross-examination of the respondent which concluded in 2017 that infact he had entered into a second marriage with Hinaben ManubhaiPanchal on 14.12.2006. Even the marriage certificate was produced onrecord as Exhibit 200. It also came on record that the respondent has ason named ‘Dev’ from the said illegal relationship and his birth certificatehas also been produced on record as Exhibit 201.

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A3.5 It is submitted that therefore the appellant was absolutelyjustified in submitting the application (Exhibit 281) for amendment of thewritten statement to add paras 35 and 36 to plead the facts regarding thesecond marriage and also to seek relief in the nature of counter claimvide para 37 seeking a declaration inter alia that the marriage betweenthe respondent and the said Hinaben Manubhai Panchal is null and voidBand that Hinaben Manubhai Panchal is not a legal wife of the respondent-husband and that he was living with her in adultery.

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3.6 It is submitted that a declaration was also sought that the son‘Dev’ born to the respondent with Hinaben Manubhai Panchal is anillegitimate child.C

3.7 It is submitted that however the learned Family Court allowedthe application in part allowing addition of paras 35 and 36 but did notpermit amendment in the written statement to add/introduce counterclaim in terms of para 37. It is submitted that even the order dated8.5.2018 passed by the learned Family Court allowing the introduction/Daddition of paras 35 & 36 has also been set aside by the High Court, bythe impugned judgment and order.

3.8 Shri Puneet Jain, learned Advocate appearing on behalf of theappellant has vehemently submitted that, as such, in the facts andEcircumstances of the case, narrated hereinabove, the application filedby the appellant-wife for amendment of the written statement is requiredto be allowed in toto. It is submitted that the fact regarding actual marriageof the respondent-husband with Hinaben Manubhai Panchal (third party)was not known to the appellant, which fact came to the knowledge onlyduring cross-examination of the respondent in the present proceedingsFwhen the marriage certificate(|Ex.200) as well as the birth certificate ofhis son ‘Dev’ (Ex.201) out of the marriage between the respondent andHinaben Manubhai Panchal came on record as Ex. 201.

3.9 It is submitted that soon thereafter the appellant filed anapplication for impleadment of Ms. Hinaben Manubhai Panchal as aGparty and the application for amendment of the written statement, Ex.281. It is submitted that therefore at the first available opportunity afterthe appellant came to know about the actual marriage between therespondent and Hinaben Manubhai Panchal, which came to light in theyear 2017, the application (Ex. 281) was filed and therefore the sameHought to have been allowed.

3.10 It is submitted that the High Court has materially erred inrejecting the application (Ex. 281) on the ground that once the writtenstatement has been filed, the defendant cannot be permitted to amendthe written statement. It is submitted that in the facts and circumstancesof the case, the High Court has erred in relying upon and/or hasmisconstrued the provisions of Order VIII, Rules 8 & 9 CPC and provisoto Order VI Rule 17 CPC.

3.11 It is submitted that even the factum of actual marriagebetween the respondent and Hinaben Manubhai Panchal on 14.12.2006came to the knowledge of the appellant after filing of the written statementand therefore the appellant can be permitted to amend the writtenstatement bringing on record the factum of actual marriage on 14.12.2006between the respondent and Hinaben Manubhai Panchal and the barcontained in proviso to Order VI rule 17 CPC shall not come in the wayand in any case the same may be permitted with the leave of the Courtto either amending the written statement or by filing an additional writtenstatement.

3.12 It is submitted that as such there was no delay in filing theapplication (Ex.281) under Order VI Rule 17 CPC from the date ofknowledge of the actual marriage which came to light during the cross-examination of the respondent. It is submitted that even otherwise delayis no ground for refusal of prayer for amendment of a written statement.Reliance is placed on the decision of this Court in the case of AndhraBank v. ABN Amro Bank, (2007) 6 SCC 167 (para 5). It is submittedthat even the High Court has proceeded on an erroneous premise assumingknowledge of illicit relationship as knowledge of marriage between therespondent and Hinaben Manubhai Panchal.

3.13 It is further submitted that power to allow amendment iswide and is to be liberally construed; the Court is only required to seethat if the amendment causes any prejudice to the other party. It issubmitted that as such the learned Family Court has specifically foundthat no prejudice shall be caused to the respondent due to the amendment.Reliance is placed on the decisions of this Court in the cases of ChanderKanta Bansal v. Rajinder Singh Anand, (2008) 5 SCC 117 (para11); Abdul Rehman v. Mohd. Ruldu, (2012) 11 SCC 341 (para 11);and Gurbakhsh Singh v. Buta Singh, (2018) 6 SCC 567 (paras 4 &5).

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A3.14 It is submitted that as such the underlying principle behindallowing the application under Order VI Rule 17 CPC or to raise a counterclaim under Order VIII Rule 6A is to prevent multiplicity of proceedings.It is submitted that the grounds raised in the amendment vide paras 35and 36 are not only in the nature of a defence against the allegations ofdesertion and cruelty, but also constitute necessary pleadings in supportBof relief sought for in the counter claim. It is submitted that the amendmentsought for would not change the character of the suit.

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3.15 It is further submitted that even the relief sought in terms ofpara 37 is the counter claim for declaring the marriage of the respondent-husband with Hinaben Manubhai Panchal as null and void and for theClegitimacy of their son ‘Dev’ is consequential in view of the undisputedand admitted fact that the marriage between the appellant and therespondent is still subsisting. It is submitted that it is to be noted that assuch the present proceedings filed by the respondent-husband are toseek a decree for divorce under Section 13 of the Hindu Marriage ActDwhich has yet not been decided and therefore as on today the marriagebetween the appellant and the respondent is subsisting. It is submittedthat therefore the marriage between the respondent and HinabenManubhai Panchal is thus illegal under Section 5(a) of the Hindu MarriageAct. It is submitted that therefore the relief sought for in the counterclaim is undeniable on admitted facts and will have to be grantedE“irrespective” of the outcome of the petition filed by the respondentunder Section 13 of the HMA. It is submitted that as such the counterclaim is permissible as per Section 23A of the HMA.

3.16 It is further submitted that even otherwise the cause of actionfor filing the counter claim has arisen after filing of the written statementFand more particularly in the cross-examination of the respondent-husbandthat the respondent had got married to Hinaben Manubhai Panchal on14.12.2006. It is submitted that therefore also the declaration as soughtfor in para 37 by way of counter claim ought to have been permitted/allowed. Reliance is placed on the decision of this Court in the case ofGAshok Kumar Kalra v. Wing Commander Surendra Agnihotri, (2020)2 SCC 394 (paras 12 to 18 & 21).

3.17 It is further submitted that even otherwise a counter claim isin any case is to be decided as an independent suit and so long as therelief sought for is otherwise within limitation, the same can be entertained.HIn the present case, the petition under Section 13 was still at the stage of

evidence, wherein the appellant – original defendant has to lead evidencein defence who could lead common evidence for defence and counterclaim and the respondent-husband can be permitted to rebut, if sorequired. It is submitted that therefore no prejudice would thus be causedto the respondent if application (Ex. 281) is allowed in toto.

3.18 Making the above submissions and relying upon the aforesaiddecisions, it is prayed to allow the present appeals.

4. The present appeals are vehemently opposed by Shri MihirThakore, learned Senior Advocate appearing on behalf of the respondent-husband. Insofar as amendment sought vide para 37 in Ex. 281, i.e.,declaration sought that marriage between the respondent-husband andHinaben Manubhai Panchal is null and void is concerned, it is submittedthat such prayer which is in the nature of counter claim cannot be granted.

4.1 It is submitted that it is true that Section 23A of the HinduMarriage Act permits the respondent to raise a counter claim. It issubmitted that however under Section 23A, by way of counter claim,firstly, the respondent can seek relief against the petitioner on the groundof petitioner’s adultery, cruelty or desertion and secondly, the petitionercan seek only such relief as is maintainable under the Hindu MarriageAct, 1955 and not otherwise. It is submitted that under the HMA, 1955the respondent can seek relief under Section 9 to 13 only. It is submittedthat therefore by virtue of Section 23A, it is not open for the respondent(appellant herein) to seek a declaration to the effect that marriage betweenthe respondent-husband and the third party (Hinaben Manubhai Panchal)is void. It is submitted that such relief falls within the ambit of Section 34of the Special Relief Act, 1963 and in any case, it does not fall within anyof the provisions of Sections 9 to 13 of the Hindu Marriage Act. Relianceis placed on the decision of the Rajasthan High Court in the case ofDamodar v. Urmila, AIR 1980 Raj. 57.

4.2 Now so far as the amendment sought vide paragraphs 35 and36 in Ex. 281 application is concerned, it is vehemently submitted thatthis prayer is required to be rejected inter alia on the ground that it isbarred by proviso to Order VI Rule 17 CPC. It is submitted that as suchthe appellant-wife had knowledge about the factum of alleged respondent-husband’s second marriage with Hinaben Manubhai Panchal since23.03.2007. It is submitted that the appellant-wife in the cross-examination recorded as Ex.359 has categorically admitted that her A

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Alawyer applied for so called marriage certificate on 12.03.2007 and hewas supplied copy thereof on 23.03.2007. It is submitted that she alsocategorically admitted that despite having knowledge about the allegedmarriage certificate since 23.03.2007, she did not mention about thealleged marriage of the respondent-husband with Hinaben ManubhaiPanchal. It is submitted that therefore it is not open for the appellant-Bwife to file such an application at such a belated stage.

4.3 Learned Senior Counsel appearing on behalf of the respondent-husband has relied upon the following timeline which according to him isrelevant for the purpose of considering amendment sought videparagraphs 35 and 36 in Ex.281 application, which are as under:C

It is submitted that not only that but in the impugned judgment andEorder the High Court has also arrived at the specific conclusion that theappellant-wife had definite knowledge about the alleged marriage since2007.

4.4 It is submitted that today we are at the stage of cross-examination of the appellant-wife and at this stage with a mala fideFintention of delaying the proceedings such an application is filed. It issubmitted that such an amendment is hit by proviso to Order VI Rule 17CPC.

4.5 It is further submitted that proviso to Order VI Rule 17 CPCvirtually prevents an application for amendment of pleadings from beingGallowed after the trial has commenced, unless the Court comes to theconclusion that in spite of due diligence, the party could not have raisedthe matter before the commencement of the trial and a trial is deemed tohave commenced. It is submitted therefore that the proviso to an extentcurtails absolute discretion to allow amendment at any stage. The burdenHis on the person who seeks an amendment after commencement of the trial to show that inspite of due diligence, such an averment could nothave been made earlier. Heavy reliance is placed on the decisions ofthis Court in the cases of Ajendraprasadji N. Pandey v. SwamiKeshavprakeshdasji N., (2006) 12 SCC 1 (Paras 55,60 to 62); M.Revanna v. Anjanamma (dead) by Lrs., (2019) 4 SCC 332 (paras 7to 9); Chander Kanta Bansal (supra) (paras 11 to 13,15, 17, 19 &20); and Vidyabai v. Padmalatha, (2009) 2 SCC 409 (paras 11 to13, 19 & 21).

4.6 It is submittedthat by virtue of Section 10 of the Family CourtsAct, 1984 and Section 21 of Hindu Marriage Act, 1955, the provisions ofCPC apply to proceedings under HMA and therefore proviso to OrderVI Rule 17 CPC would come into play.

4.7 Making the above submissions and relying upon the aforesaiddecisions, it is prayed to dismiss the present appeals.

5. We have heard the learned counsel for the respective partiesat length.

By the impugned judgment and order, the High Court has dismissedthe application (Ex.281) filed by the appellant herein in the family Courtby which the appellant prayed to amend the written statement as perparagraphs 35, 36 and 37, reproduced hereinabove. By incorporatingparagraphs 35 and 36, the appellant proposed to amend the writtenstatement bringing on record the factum of marriage of the respondentwith one Hinaben Manubhai Panchal on 14.12.2006 and other factualaspects. So far as the amendment sought vide para 37 is concerned, thesame was for incorporating the prayer by way of counter claim underSection 23 of the Hindu Marriage Act. As observed hereinabove, thelearned Family Court partly allowed the application (Ex.281) andpermitted the amendment in the written statement as per paras 35 and36. However, rejected the amendment sought vide para 37. Whilerefusing the amendment sought qua para 37, the learned Family Courtobserved that the appellant – original defendant cannot seek the proposedrelief and in view of Section 23A of the Hindu Marriage Act, the defendantcan seek relief under the Hindu Marriage Act only on the ground ofadultery, cruelty or desertion and cannot seek the relief to declare thatthe second marriage of the respondent with Hinaben Manubhai Panchal(third party) is illegal, void, voidable etc. and as the appellant is not seekingany relief under the Hindu Marriage Act, she cannot seek the relief asproposed in para 37 as a counter claim. However, by the impugned AB

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Ajudgment and order, the High Court has dismissed the entire application(Ex.281) mainly on the ground that once a written statement is filed andthe trial has commenced, application to amend the written statement inexercise of powers under Order VI Rule 17 CPC is not required to beentertained and that in view of Order VIII Rule 6A CPC, the defendantcan pray for a counter claim against the plaintiff either before or afterBthe filing of the suit but before the defendant has delivered his defence(written statement) or before the time limited for delivering his defencehas expired. Mainly relying upon the embargo under Order VI Rule 17CPC and Order VIII Rule 6A CPC, the High Court has dismissed theapplication (Ex.281) in toto.C

6. While deciding the issues involved in the present appeals, therelevant provisions of the CPC, namely, Order VI Rule 17 CPC andOrder VIII Rule 6A CPC are required to be referred to, which read asunder:

“Order VI Rule 17D

17. Amendment of Pleadings – The Court may at any stage ofthe proceedings allow either party to alter or amend his pleadingsin such manner and on such terms as may be just, and all suchamendments shall be made as may be necessary for the purposeof determining the real questions in controversy between the parties:

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Provided that no application for amendment shall be allowed afterthe trial has commenced, unless the Court comes to the conclusionthat in spite of due diligence, the party could not have raised thematter before the commencement of the trial.

Order VIII, Rule 6AF

6A – Counter-claim by defendant – (1) A defendant in a suit may,in addition to his right of pleading a set-off under rule 6, set up, byway of counter-claim against the claim of the plaintiff, any rightor claim in respect of a cause of action accruing to the defendantagainst the plaintiff either before or after the filing of the suit butGbefore the defendant has delivered his defence or before the timelimited for delivering his defence has expired, whether suchcounter-claim is in the nature of a claim for damages or not:

Provided that such counter-claim shall not exceed the pecuniarylimits of the jurisdiction of the Court.

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(2) Such counter-claim shall have the same effect as a cross-suitso as to enable the Court to pronounce a final judgment in thesame suit, but on the original claim and on the counter-claim.

(3) The plaintiff shall be at liberty to file a written statement inanswer to the counter-claim of the defendant within such periodas may be fixed by the Court.

(4) The counter-claim shall be treated as a plaint and governed bythe rules applicable to plaints.”

7. Order VI Rule 17 CPC provides for amendment of the pleadings.The Court may at any stage of the proceedings allow either party toalter or amend his pleadings (including written statement) in such mannerand on such terms as may be just, and all such amendments shall bemade as may be necessary for the purpose of determining the realquestions in controversy between the parties. Proviso to Order VI Rule17 CPC further provides that no application for amendment shall beallowed after the trial has commenced, unless the Court comes to theconclusion that in spite of due diligence, the party could not have raisedthe matter before the commencement of the trial. Relying upon the provisoto Order VI Rule 17 CPC, the High Court has refused the amendmentsought qua paragraphs 35 and 36. However, it is required to be notedthat as per the case of the appellant-wife, she actually came to knowabout the actual marriage between the respondent and Hinaben ManubhaiPanchal on 14.12.2006 only during the cross-examination of therespondent and when the marriage certificate was produced on record.It is required to be noted that right from the very beginning, it was thespecific case on behalf of the appellant that the respondent-husband isliving in adultery with Hinaben Manubhai Panchal and in the rejoinderaffidavit filed by the respondent-husband, the respondent -husband deniedthe allegation of adultery and stated that Hinaben Manubhai Panchal ismanager in the hospital run by him and she is looking after the hospitaland accounts as a job. Though, the respondent-husband had marriedwith Hinaben Manubhai Panchal on 14.12.2006, he did not disclose thecorrect and true facts and suppressed the material facts. Only in thecross-examination, he admitted the marriage with Hinaben ManubhaiPanchal on 14.12.2006 and produced the marriage certificate. Therefore,in view of the above, the restrictions as per the proviso to Order VI Rule17 CPC shall not be applicable. The proviso to Order VI Rule 17 CPCthat no application for amendment shall be allowed after the trial hascommenced unless the court comes to the conclusion that in spite of due ABC

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Adiligence the party could not have raised the matter before thecommencement of trial. Therefore, if some facts have come to theknowledge subsequently and subsequent to the commencement of trial,may be during the course of trial and if it is found that it is necessary forthe purpose of determining the real questions in controversy betweenthe parties, on a fair reading of Order VI Rule 17 CPC, such an applicationBfor amendment can be allowed even after the trial has commenced. Inthe present case, as observed hereinabove, the factum of actual marriageon 14.12.2006 came to the knowledge of the appellant-wife when themarriage certificate was produced during the cross-examination of therespondent-husband and immediately thereafter the application (Ex.281)Cfor amendment was made. Therefore, as such, and looking to the caseon behalf of the appellant, so pleaded in the written statement, the learnedFamily Court was right and justified in allowing the amendment soughtqua paras 35 and 36. The High Court has committed an error inmisapplying the proviso to Order VI Rule 17 CPC and has erred inrejecting the amendment sought qua paras 35 and 36 in applicationD(Ex.281).

8. Now so far as the amendment sought qua para 37 in Ex.281application is concerned, at the outset, it is required to be noted that itwas in the form of counter-claim. It is true that as per Order VIII Rule6A CPC, a defendant in a suit may, in addition to his right of pleading aEset-off under rule 6, set up, by way of counter-claim against the claim ofthe plaintiff, any right or claim in respect of a cause of action accruing tothe defendant against the plaintiff either before or after the filing of thesuit but before the defendant has delivered his defence or before thetime limited for delivering his defence has expired, whether such counter-Fclaim is in the nature of a claim for damages or not. However, in thepresent case, according to the appellant, the cause for counter claim hadaccrued after the appellant-defendant has delivered her defence (writtenstatement) and more particularly when during the cross-examination ofthe plaintiff (respondent herein) the factum of marriage with HinabenManubhai Panchal on 14.12.2006 was admitted and the marriageGcertificate was produced. Therefore, the High Court is not justified and/or right in refusing to allow the counter claim as proposed in para 37 onthe ground that the same is not permissible after the appellant as defendanthas delivered her defence by filing the written statement. On the aforesaidground, the High Court ought not to have rejected the amendment soughtHqua para 37.

However, at the same time, the core question which is required tobe considered is, whether the appellant-wife could have claimed therelief sought qua para 37 by way of counter claim in a marriage petitionfiled by the respondent-husband for dissolution of the marriage?

9. As per para 37, the appellant-original defendant has proposedthe relief to declare that the marriage between the respondent-originalplaintiff with Hinaben Manubhai Panchal on 14.12.2006 is illegal, voidand voidable and further to declare that Hinaben Manubhai Panchal isnot a legal wife of the respondent – original plaintiff and also to declarethat the original plaintiff – respondent herein is living with HinabenManubhai Panchal in adultery. It is also further prayed to declare thatthe son ‘Dev’ born through the respondent and Hinaben ManubhaiPanchal is not a legitimate child of the respondent-original plaintiff.

On a fair reading of Section 23A of the Hindu Marriage Act, weare afraid that the relief sought by way of counter claim in the HinduMarriage Petition filed by the respondent can be claimed. Section 23Aof the Hindu Marriage Act reads as under:

“23A. Relief for respondent in divorce and other proceedings –In any proceeding for divorce or judicial separation or restitutionof conjugal rights, the respondent may not only oppose the reliefsought on the ground of petitioner’s adultery, cruelty or desertion,but also make a counter-claim for any relief under this Act on thatground; and if the petitioner’s adultery, cruelty or desertion isproved, the court may give to the respondent any relief under thisAct to which he or she would have been entitled if he or she hadpresented a petition seeking such relief on that ground.”

On a fair reading of Section 23A of the Hindu Marriage Act, therespondent in any proceedings for divorce or judicial separation orrestitution of conjugal rights, may not only oppose the relief sought onthe ground of adultery, cruelty or desertion, but also make a counter-claim for any relief under Hindu Marriage Act, i.e, on the ground ofpetitioner’s adultery, cruelty or desertion and if the petitioner’s adultery,cruelty or desertion is proved, the court may give to the respondent anyrelief under Hindu Marriage Act to which he or she would have beenentitled if he or she had presented a petition seeking such relief on thatground, i.e., seeking a divorce or judicial separation on the ground ofpetitioner’s adultery or cruelty. Therefore, by way of counter claim, therespondent in any proceedings for divorce or judicial separation or A

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Arestitution of conjugal rights can pray for the relief by way of counterclaim only those reliefs which can be prayed and/or granted under theHindu Marriage Act, namely, the relief under Section 9 (Restitution ofconjugal rights); Section 10(judicial separation); Sections 11 &12(declaration of marriage between the petitioner and the respondentvoid) and Section 13 (divorce). Therefore, the respondent to the aforesaidBproceedings can pray for the aforesaid reliefs only by way of counterclaim and that too between the petitioner and the respondent. No reliefcan be prayed qua the third party. Under the provisions of the HinduMarriage Act, the relief of divorce, judicial separation etc. can be betweenthe husband and the wife only and cannot extend to the third party.CTherefore, by virtue of Section 23A of the Hindu Marriage Act, it is notopen for the appellant herein – original defendant to seek declaration tothe effect that the marriage between the respondent – original plaintiffand the third party – Hinaben Manubhai Panchal is void. No relief canbe prayed by way of counter claim even against ‘Dev’, the son born outof the alleged wedlock between the respondent – original plaintiff andDthe third party – Hinaben Manubhai Panchal. In such a situation, theonly remedy available to the appellant would be to file a substantive suitand/or initiate independent proceedings claiming such reliefs. But suchreliefs cannot be claimed by way of counter claim under Section 23A ofthe Hindu Marriage Act in the petition for divorce filed by the respondentEherein against the appellant. At the most, the appellant herein – originaldefendant by way of counter claim could have claimed the relief andprayed for divorce and/or judicial separation on the ground of husband’sadultery. Beyond that, no relief which cannot be granted under theprovisions of the Hindu Marriage Act can be claimed by way of counterclaim.F10. An identical question came to be considered by the RajasthanHigh Court in the case of Damodar (supra) and the Rajasthan HighCourt observed as under:

“…As already stated, the matrimonial Court has no jurisdiction toGgo into the factum or validity of the alleged divorce obtained bythe husband from the community Panchayat in accordance withthe so-called custom prevalent in the community. This is a matterwhich falls squarely within the jurisdiction of the Civil Courts.Section 9 of the CPC lays down that the Civil Courts shall havejurisdiction to try all suits of a civil nature excepting suits of whichH

their cognizance is either expressly or impliedly barred. A perusalof the relevant provisions of the Act would show that it is a completecode in itself creating new rights for an aggrieved spouse governedby the Act to obtain decree of restitution of conjugal rights judicialseparation, nullity of marriage and divorce, as the case may be.Sections 9 to 13 deal with the rights of an aggrieved spouse tomake an application seeking appropriate relief against the otherspouse, Section 19 which provides for forum for seeking suchrelief lays down that every petition under the Act shall be presentedto the District Court, within the local limits of whose ordinaryoriginal civil jurisdiction the cause of action arose in the mannerand circumstances specified in Cls. (i), (ii), (iii) and (iv) of thatSection. The words “every petition under this Act” occurring inthis Section have reference clearly to the petitions under Sections9 to 13 of the Act. The Act does not make any provision for thegrant of relief to a spouse interested in getting a declaration thathe or she, has already obtained dissolution of marriage accordingto custom or usage from the community Panchayat and that theaid dissolution is valid and binding on the two spouses. Similarly,there is no provision in the Act, to enable a spouse, against whoma petition is filed by the other spouse under any of the Sectionsfrom 9 to 18, to raise a plea in defence that he or she has alreadyobtained dissolution of the marriage from the community Panchayator the like according to custom governing the parties, and that,therefore, the marriage is no longer subsisting. It can, therefore,be safely held that the Act which deals with certain matrimonialdisputes among the Hindus does not make any provision foradjudication of a claim or defence, that the marriage between thecontending parties already stands dissolved by virtue of the decisionof a private forum like the Panchayat of the tribe, community,group or family, as the case may be. Such adjudication can,therefore, be obtained only from the Civil Court and not from thematrimonial Court under the Act.”

We are in complete agreement with the view taken by theRajasthan High Court.

11. In view of the above and for the reasons stated above, thepresent appeals succeed in part. The impugned judgment and order passedby the High Court is hereby quashed and set aside. The order passed by AB

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Athe learned Family Court dated 8.5.2018 passed in the application (Ex.281)is hereby restored and the appellant herein – original defendant ispermitted to amend the written statement as prayed qua paras 35 and36. The amendment sought by the appellant qua para 37 is herebydismissed. However, it will be open for the appellant to initiate independentproceedings by way of filing a substantive suit and/or any other remedyBwhich may be available to the appellant under law with respect to prayersought qua para 37.

12. The present appeals are partly allowed to the aforesaid extent.However, in the facts and circumstances of the case, there shall be noorder as to costs.

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Devika Gujral

Appeals partly allowed.

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