Sunday, 28 July 2019

What type of counter claim can be filed in matrimonial proceeding?

 Heard Counsel for the parties and perused the record. The only question that arises for consideration in this Writ Petition is, as to whether the Family Court was justified in relying upon Order VIII Rule 6-A of the CPC, to hold that the petitioner was not entitled to raise a counterclaim after having filed the written statement and upon expiry of period of limitation prescribed under Order VIII Rule 6-A of the CPC. The findings rendered by the Family Court can be upset only if it is found that the CPC would be applicable to the right of the petitioner to submit a counterclaim in the proceedings for divorce filed by the respondent before the Family Court. In this regard the following provisions of the Act of 1955 are relevant:-

"21. Application of Act 5 of 1908.-- Subject to the other provisions contained in this Act and to such rules as the High Court may make in this behalf, all proceedings under this Act shall be regulated, as far as may be, by the Code of Civil Procedure, 1908."

"23-A. Relief for respondent in divorce and other proceedings.--In any proceedings 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 the ground, and if the petitioner's adultery, cruelty or desertion is proved the Court may give to the respondent any relief if he or she had presented a petition seeking such relief on that ground."

10. A perusal of the above quoted Section 23-A of the Act of 1955, that any proceedings for divorce initiated by a party, the respondent would be entitled to raise a counterclaim and it would have to be treated as if the respondent had filed a petition seeking such relief. There is no period of limitation or any other rider mentioned in the said Section 23-A of the Act of 1955, as provided under Order VIII Rule 6-A of the CPC. Section 21 of the Act of 1955, quoted above, shows that the CPC would be applicable to the proceedings initiated under the said Act subject to other provisions contained therein. A conjoint reading of the aforesaid Section 21 and Section 23-A of the Act of 1955 shows that the respondent in a proceeding initiated under the Act of 1955, would have a right to raise a counterclaim without being subjected to the specific fetters contained in Order VIII Rule 6-A of the CPC. This is because, to the extent of applicability of Section 23-A of the Act of 1955, the provisions of Order VIII Rule 6-A of the CPC, would not be applicable. This clearly shows that the Family Court erred while passing the impugned order and holding that the application for raising counterclaim filed on behalf of the petitioner could not be entertained.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Writ Petition No. 5768 of 2016

Decided On: 29.01.2019

 Ruchi Vs.  Bhanupratapsingh Gour

Hon'ble Judges/Coram:
Manish Pitale, J.

Citation: 2019(4) MHLJ 60

1. Rule. Rule returnable forthwith by consent of learned Counsel appearing for the parties.

2. By this Writ Petition, the petitioner has challenged order dated 27-07-2016, passed by the Family Court, Nagpur, whereby an application (Exhibit-44) filed on behalf of the petitioner for permission to file counterclaim and for claiming reliefs under the provisions of the Protection of Women from Domestic Violence Act, 2005 (for short, 'Act of 2005'), was rejected.

3. The petitioner and respondent were married on 20-04-2007 at Baitul. On 13-05-2014, the respondent (husband) filed a petition for grant of divorce against the petitioner (wife) before the Family Court. During the pendency of the said petition, on 27-01-2015, the respondent filed an application for restraining the petitioner from doing any unlawful act and from entering the house of the respondent. On 11-01-2016, the respondent filed reply to the said application and she also filed written statement to the petition for divorce filed by the respondent. The said application filed on behalf of the respondent was directed to be decided along with the main petition for divorce filed by the respondent.

4. According to the petitioner, during the pendency of the said petition and the application filed by the respondent, on 01-04-2016, she was illegally prevented from entering the matrimonial house and that gave rise to cause of action for her to claim Restitution of Conjugal Rights and to claim certain reliefs under the Act of 2005.

5. Accordingly, on 14-06-2016, the petitioner filed an application for permission to file counterclaim for restitution of conjugal rights and for reliefs under the provisions of the Act of 2005, claiming that she had been thrown out of the matrimonial house from 01-04-2016 onwards. This application was opposed by the respondent.

6. By the impugned order dated 27-07-2016, the Family Court has rejected the application filed by the petitioner on the ground that under Order VIII Rule 6-A of the Code of Civil Procedure, 1908 (CPC), the petitioner ought to have raised her counterclaim either along with the written statement or within the period of limitation prescribed for raising her defence in response to the petition of divorce filed by the respondent. It was found by the Family Court that since the written statement was already filed by the petitioner and the limitation for filing counterclaim under Order VIII Rule 6-A of the CPC had expired, she could not raise any claim towards Restitution of Conjugal Rights as sought by her. As regards the relief sought to be claimed by the petitioner in the pending proceeding, it was observed by the Family Court that under Section 26 of the Act of 2005, the petitioner could do so. But, since the Family Court found that the right to raise a counterclaim by the petitioner was barred by limitation, the entire application was rejected.

7. Mrs. Jyoti Dharmadhikari, learned Counsel appearing for the petitioner, submitted that the impugned order passed by the Family Court was unsustainable because, on application of Section 23-A of the Hindu Marriage Act, 1955 (for short, 'Act of 1955') read with Section 21 thereof, it was evident that the limitation prescribed under Order VIII Rule 6-A of the CPC for raising counterclaim would not apply in the present proceedings before the Family Court initiated by the respondent under the provisions of the Act of 1955. It was submitted that Section 21 of the Act of 1955, clearly states that subject to other provisions of the Act of 1955, all proceedings under the said Act would be regulated as far as may be by the CPC. It was submitted that since Section 23-A of the Act of 1955, specifically provided for right to raise a counterclaim and no limitation was prescribed for the same, the Family Court could not have rejected the application filed on behalf of the petitioner. Reliance was placed on judgment of the Madhya Pradesh High Court in the case of Sameeran Roy vs. Smt. Leena Roy, reported at MANU/MP/0359/2000 : AIR 2001 MP 192.

8. On the other hand Mr. Sudhir Dhurway, learned Counsel appearing for the respondent, submitted that the Family Court was justified in rejecting the application of the petitioner because the counterclaim, if any, ought to have been raised along with written statement or within the limitation as prescribed under Order VIII Rule 6-A of the CPC. It was sought to be argued that the reliefs claimed by the petitioner under the provisions of the Act of 2005, could not have been entertained by the Family Court and that such reliefs ought to have been claimed before the Criminal Courts. On this basis, it was submitted that the Writ Petition deserves to be dismissed.

9. Heard Counsel for the parties and perused the record. The only question that arises for consideration in this Writ Petition is, as to whether the Family Court was justified in relying upon Order VIII Rule 6-A of the CPC, to hold that the petitioner was not entitled to raise a counterclaim after having filed the written statement and upon expiry of period of limitation prescribed under Order VIII Rule 6-A of the CPC. The findings rendered by the Family Court can be upset only if it is found that the CPC would be applicable to the right of the petitioner to submit a counterclaim in the proceedings for divorce filed by the respondent before the Family Court. In this regard the following provisions of the Act of 1955 are relevant:-

"21. Application of Act 5 of 1908.-- Subject to the other provisions contained in this Act and to such rules as the High Court may make in this behalf, all proceedings under this Act shall be regulated, as far as may be, by the Code of Civil Procedure, 1908."

"23-A. Relief for respondent in divorce and other proceedings.--In any proceedings 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 the ground, and if the petitioner's adultery, cruelty or desertion is proved the Court may give to the respondent any relief if he or she had presented a petition seeking such relief on that ground."

10. A perusal of the above quoted Section 23-A of the Act of 1955, that any proceedings for divorce initiated by a party, the respondent would be entitled to raise a counterclaim and it would have to be treated as if the respondent had filed a petition seeking such relief. There is no period of limitation or any other rider mentioned in the said Section 23-A of the Act of 1955, as provided under Order VIII Rule 6-A of the CPC. Section 21 of the Act of 1955, quoted above, shows that the CPC would be applicable to the proceedings initiated under the said Act subject to other provisions contained therein. A conjoint reading of the aforesaid Section 21 and Section 23-A of the Act of 1955 shows that the respondent in a proceeding initiated under the Act of 1955, would have a right to raise a counterclaim without being subjected to the specific fetters contained in Order VIII Rule 6-A of the CPC. This is because, to the extent of applicability of Section 23-A of the Act of 1955, the provisions of Order VIII Rule 6-A of the CPC, would not be applicable. This clearly shows that the Family Court erred while passing the impugned order and holding that the application for raising counterclaim filed on behalf of the petitioner could not be entertained.

11. In the judgment in the case of Sameeran Roy vs. Smt. Leena Roy (supra) relied upon by the learned Counsel appearing for the petitioner, in a similar situation, Madhya Pradesh High Court has held as follows:-

"8. At this juncture, I may profitably refer to Section 21 of the Act. It reads as under:

"21. Application of Act 5 of 1908.-- Subject to the other provisions contained in this Act and to such rules as the High Court may make in this behalf, all proceedings under this Act shall be regulated, as far as may be, by the Code of Civil Procedure, 1908."

The aforesaid provision makes it luminously clear that the proceeding under the Act shall be regulated as far as may be the Code of Civil Procedure, 1908. Thus, this section clearly indicates that to an application under Section 13 of the Act the Code of Civil Procedure does not automatically apply. The applicability of Code of Civil Procedure has been hedged by two conditions, namely, subject to other provisions of the Act and subject to the Rules framed by the High Court. That apart, the terms "as far as may be" have also to be given its due prominence. Thus, it is apparent that if any provision is in existence under the Act it would oust the application of the provisions of the Code of Civil Procedure. In this context, Section 23A of the Act assumes significance. The provision reads as under:

"23-A. Relief for respondent in divorce and other proceedings.--In any proceedings 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 the ground, and if the petitioner's adultery, cruelty or desertion is proved the Court may give to the respondent any relief if he or she had presented a petition seeking such relief on that ground."

On a fair reading of the aforesaid provision it is graphically clear that a special provision of this nature provides for counter-claim in respect of a divorce petition. Thus, provision of Order 8 Rule 6-A of the Code shall not be applicable, in view of the provisions enshrined under Section 23A of the Act."

12. This Court respectfully agrees with the reasonings given by the Madhya Pradesh High Court in the aforesaid judgment.

13. Insofar as the question as to whether the petitioner could claim reliefs under the Act of 2005 before the Family Court by raising a counterclaim, the learned Counsel appearing for the petitioner is justified in relying on Section 26 of the Act of 2005, wherein it is made clear that in a legal proceeding initiated before the Family Court, any relief available under Sections 18, 19, 20, 21 and 22 of the Act of 2005, can be claimed by an aggrieved person. Therefore, there is no substance in the contention raised on behalf of the respondent that the petitioner could have claimed reliefs under the provisions of the Act of 2005, only before the Criminal Courts and not before the Family Court where divorce petition is already pending.

14. In view of the above, the Writ Petition is allowed. The impugned order passed by the Family Court is quashed and set aside and the application filed on behalf of the petitioner is allowed in terms of prayers made therein.

15. Rule is made absolute in above terms.


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