NITABEN DINESH PATEL versus DINESH DAHYABHAI PATEL

Citation: [2021] 8 S.C.R. 618 · Decided: 07-10-2021 · Supreme Court of India · Bench: M.R. SHAH · Disposal: Case Partly allowed

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Judgment (excerpt)

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SUPREME COURT REPORTS
[2021] 8 S.C.R.
[2021] 8 S.C.R. 618
618
NITABEN DINESH PATEL
v.
DINESH DAHYABHAI PATEL
(Civil Appeal Nos. 5901-5902 of 2021)
OCTOBER 07, 2021
[M. R. SHAH AND A. S. BOPANNA, JJ.]
Hindu Marriage Act, 1955 – s.23A – Proceedings for divorce
or judicial separation or restitution of conjugal rights – Counter-
claim for relief – Scope – Held: By way of counter claim, the
respondent in any proceedings for divorce or judicial separation
or restitution of conjugal rights can pray for relief by way of counter
claim only those reliefs which can be prayed and/or granted under
the Hindu Marriage Act – The respondent to such proceedings can
pray for reliefs only by way of counter claim and that too between
the petitioner and the respondent – No relief can be prayed qua a
third party – 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 – On facts,
by virtue of s.23A of the Hindu Marriage Act, it was not open for
the wife (original defendant) to seek declaration to the effect that
the marriage between the husband (original plaintiff) and a third
party was void – No relief could be prayed by way of counter claim
even against the son born out of the alleged wedlock between the
husband-original plaintiff and the said third party – In such
situation, the only remedy available to the wife–original defendant
would be to file a substantive suit and/or initiate independent
proceedings claiming such reliefs – At the most, the wife–original
defendant by way of counter claim could have claimed relief and
prayed for divorce and/or judicial separation on ground of
husband’s adultery – No relief which cannot be granted under the
provisions of the Hindu Marriage Act could not be claimed by way
of counter claim.
Code of Civil Procedure, 1908 – Order VIII, r.6A – Counter-
claim by defendant – Tenability – Held: It is true that as per Order
VIII Rule 6A CPC, a defendant in a suit may, in addition to his right
of pleading a set-off under rule 6, set up, by way of counter-claim
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against the claim of the plaintiff, any right or claim in respect of a
cause of action accruing to the defendant against the plaintiff either
before or after the filing of the suit but before the defendant has
delivered his defence or before the time limited for delivering his
defence has expired, whether such counter-claim is in the nature of
a claim for damages or not – However, in the present case, according
to appellant-wife (defendant), the cause for counter claim (in
divorce proceedings initiated by the husband) had accrued after
she had delivered her defence (written statement) and more
particularly when during cross-examination of the plaintiff
(respondent-husband) the factum of marriage with another woman
was admitted and the marriage certificate was produced – High
Court, therefore, was not justified in refusing to allow the counter
claim proposed by appellant-wife (defendant) – Hindu Marriage
Act, 1955 – s.23A.
Code of Civil Procedure, 1908 – Order VI Rule 17, proviso –
Amendment of pleadings – Restrictions as per proviso to Order VI
Rule 17 – When not applicable – Held: It is clear from the proviso
to Order VI Rule 17 that no application for amendment shall be
allowed after the trial has commenced unless the court comes to the
conclusion that in spite of due diligence the party could not have
raised the matter before the commencement of trial – Therefore, if
some facts have come to the knowledge subsequently and subsequent
to the commencement of trial, may be during the course of trial and
if it is found that it is necessary for the purpose of determining the
real questions in controversy between the parties, on a fair reading
of Order VI Rule 17 CPC, such an application for amendment can
be allowed even after the trial has commenced – Pleadings –
Amendment.
Partly allowing the appeals, the Court
HELD:1. Order VI Rule 17 CPC provides for amendment
of the pleadings. The Court may at any stage of the proceedings
allow either party to alter or amend his pleadings (including
written statement) in such manner and on such terms as may be
just, and all such amendments shall be made as may be necessary
for the purpose of determining the real questions in controversy
between the parties. Proviso to Order VI Rule 17 CPC further
NITABEN DINESH PATEL v. DINESH DAHYABHAI PATEL
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