Smt. Manju vs Dharampal Khinchar

Gopal Krishan Vyas, J.—In this writ petition filed under Articles 226 and 227 of the Constitution of India, the petitioner has prayed for quashing order dated 26.07.2011 (Annex,-5) passed by the Addl. District Judge, Ratangarh in Civil Misc. (Divorce) Case No. 16/200 and prayed that application under Order 6 Rule 17, C.P.C. for amendment may be allowed with cost. As per facts of the case, the respondent filed a petition for divorce u/s 13 of the Hindu Marriage Act, 1955 against the petitioner in the Court of Addl. District Judge, Ratangarh. Being defendant before the trial Court, the petitioner filed written-statement and, thereafter, moved an application for amendment in the written-statement and prayed that in the written-statement filed by her following amendment may be allowed to be incorporated in para 21 of the written-statement:

(Vernacular matter omitted......Ed.)

The petitioner sought permission to treat the above amendment as counter-claim and prayed that decree may be passed in her favour for restitution of the conjugal rights.

Learned trial Court after hearing learned counsel for the petitioner and applicant-respondent rejected the said application filed for amendment in the written-statement and for treating the amendment as counter-claim for the reason that applicant is seeking incorporation of the facts for seeking decree for restoration of the conjugal rights which cannot be accepted because the plea of desertion has been taken by the applicant-respondent husband.

Learned counsel for the petitioner submits that the reason for rejecting the application for amendment of the written-statement is totally in contravention of Section 23A of the Hindu Marriage Act, in which, a right is given to file counter-claim in the divorce petition for restoration of conjugal rights, therefore, the order impugned deserves to be quashed.

Per contra, learned counsel appearing on behalf of the respondent submits that as per language of Section 23A of the Act, the petitioner can file counter-claim for any relief but she cannot be permitted to amend the written-statement and incorporate her claim in the written-statement, therefore, no error has been committed by the trial Court in rejecting the application filed by the petitioner under Order 6 Rule 17, C.P.C.

After hearing learned counsel for the parties, I have perused Section 23A of the Hindu Marriage Act, 1955 which reads as under:

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.

Upon perusal of the above provision, it is abundantly clear that a right is given to the defendant in the divorce petition to file his/her counter-claim on any of the grounds available according to law, therefore, obviously the petitioner is entitled to file counterclaim for restoration of the conjugal right. However, instead of filing counter claim, in the instant case, the petitioner wife has filed application under Order 6 Rule 17, C.P.C. which is, of course, not permissible, therefore, the trial Court has rightly rejected the application for amendment in the written-statement. It is however still open to the petitioner to file counter-claim u/s 23A of the Act of 1955 because there is right given by the legislature to the defendant in the divorce petition to file counterclaim. In this view of the matter, this writ petition is disposed of with liberty to the petitioner that she may file counter-claim u/s 23A of the Hindu Marriage Act, 1955 afresh and trial Court shall consider the counterclaim as per Section 23A without insisting upon the question of limitation. The petitioner is hereby granted 15 days time from the date of receiving certified copy of this order to file counter-claim in the divorce petition filed by the respondent husband.