The Allahabad High Court observed that even though the wife has retracted her divorce petition, the husband’s counterclaim will persist, stressing the necessity for its separate consideration. The wife lodged an appeal disputing the Family Court’s decision under Section 13(1)(ia) of the Hindu Marriage Act, 1955, particularly contesting the authorization of the husband’s counterclaim to proceed autonomously.
The Division Bench of Justice Vivek Kumar Birla and Justice Syed Qamar Hasan Rizvi observed, “In the present case, the Withdrawal Application was not opposed on the condition clearly put forth that the counter-claim shall proceed, in other words, it is only on this condition the same was not opposed. Therefore, it is clear that there was a conditional acceptance to the withdrawal of the suit that the counter-claim shall remain alive…It is, therefore, clear that the proceedings of the counter-claim are treated as suit proceedings. The provisions of Rule 7 of Order VIII CPC provides that once the defendant relies upon several distinct grounds of defence or set-off or counter-claim founded upon separate and distinct facts, they shall be stated, as far as may be separately and distinctly.”
Aditya Bhushan Singhal, Esq., represented the Appellant during the court proceedings. In this specific instance, the divorce petition was initiated by the Wife, prompting the Husband to file a counter-claim seeking custody of a girl child born outside of marriage pursuant to Section 23(a) of the Act. Following this, the Wife submitted a withdrawal application under Order XXIII Rule (1)(3) along with Section 151 of the Civil Procedure Code, 1908, which was granted by the contested order. The Husband did not contest the application, provided that the Family Court continued to address his counter-claim.
While relying on the provisions of the CPC under Order VIII and definitions of ‘Abandonment’, ‘Counter-Claim’ and ‘Discontinue’ under the Black’s Law Dictionary and the Legal Glossary, the Court held, “The words used are absolutely clear on this issue, however, provision also reflects that cause of counter-claim shall be disclosed in the counter-claim as they are mentioned in the plaint to which the plaintiff has right to file written statement. Rule 6-C clearly provides for exclusion of counter-claim and it says that where a defendant sets up a counter-claim and the plaintiff contends that the claim thereby raised ought not be disposed of by way of counter-claim but in an independent suit, the plaintiff may, at any time before issues are settled in relation to the counter-claim, apply to the Court for an order that such counter-claim may be excluded and the Court may, on the hearing of such application make such order as it thinks fit.”
The Court observed that under Order VIII Rule 6-E of the CPC, if the plaintiff neglects to address a counter-claim raised by the defendant, the Court is empowered to issue a judgment regarding the counter-claim against the plaintiff or make suitable orders concerning it. Additionally, it noted that Rule 6-G specifies that the rules governing a defendant’s written statement shall also be applicable to a written statement submitted in response to a counter-claim.
Furthermore, the Court referred to the legal precedents established by the Supreme Court in the case of Rajni Rani & Anr. vs. Khairati Lal & Ors. (2015), the Allahabad High Court in Hulas Rai Baijnath vs. K.B. Bass and Co. Ltd. (1963), and the Madras High Court in O.N. Raju vs. K. Krishnan (2018).
