Gujarat High Court
Amit Hasmukhbhai Shah S/O Hasmukhbhai ... vs Archana @ Munna @ Dolly Amit Shah D/O ... on 19 April, 2024
NEUTRAL CITATION
C/SCA/5170/2024 ORDER DATED: 19/04/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 5170 of 2024
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AMIT HASMUKHBHAI SHAH S/O HASMUKHBHAI SHANTILAL SHAH
Versus
ARCHANA @ MUNNA @ DOLLY AMIT SHAH D/O GHANSHYAMBHAI
PANDYA
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Appearance:
MR BJ TRIVEDI(921) for the Petitioner(s) No. 1
MR JT TRIVEDI(931) for the Petitioner(s) No. 1
MS JIGNASA B TRIVEDI(3090) for the Petitioner(s) No. 1
MS KIRTI S PATHAK(9966) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE DEVAN M. DESAI
Date : 19/04/2024
ORAL ORDER
1. This petition is filed under Articles 226 and 227 of the Constitution of India challenging the order passed below Application Exhibit-150 in Family Suit No.534 of 2012 by the learned Family Court, Vadodara on 25.01.2024.
2. Upon joint request of the learned advocates for the respective parties, this petition is taken up for final hearing.
3. Heard learned advocate Mr. B.J. Trivedi for petitioner and learned advocate Ms. Kirti S. Pathak for respondent.
4. Learned advocate for the respondent has placed on record the reply dated 14.04.2024, which is taken on record.
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4. The brief facts of the case are that the present petitioner- original plaintiff has filed a Family Suit No.534 of 2012 before the learned Family Court, Vadodara under Section 13(i) of the Hindu Marriage Act, 1955 (for short hereinafter referred to as the 'Act') for a decree of divorce on the ground of cruelty. Defendant-present respondent appeared and filed Written Statement-cum-Counter-claim vide Exhibit-13 and raised various contentions. Issues were framed by the learned Family Court at Exhibit-63 on 18.08.2017. Thereafter, affidavit-in-lieu of examination-in-chief was filed by the petitioner. During the course of cross-examination, defendant submitted an application at Exhibit-150 on 09.11.2023 seeking to recast the issues which were framed at Exhibit-63. The said application was heard and the learned Family Court allowed the application on 25.01.2024.
5. Being aggrieved and dissatisfied with the impugned order, present petitioner is before this Court.
6. Learned advocate for the petitioner has submitted that petitioner has filed a Family Suit under Section 13(i) of the Act Page 2 of 11 Downloaded on : Fri May 03 21:11:29 IST 2024 NEUTRAL CITATION C/SCA/5170/2024 ORDER DATED: 19/04/2024 undefined for a decree of divorce on the ground of cruelty, wherein various allegations are levelled against the respondent. The suit was contested by the respondent-wife by filing Written Statement- cum-Counter-claim at Exhibit-13. In the counter-claim, one of the contentions was regarding maintenance of the respondent- wife. The plaintiff filed affidavit-in-lieu of examination-in-chief. The cross-examination of the plaintiff was started and during the course of cross-examination, the application at Exhibit-150 came to be submitted seeking to recast the issues and sought to add the issue of maintenance.
6.1. It is further submitted that the learned Family Court has committed a grave error in the eye of law by allowing the application. Learned advocate for the petitioner has placed reliance upon Section 23A of the Act, which is reproduced hereinbelow:-
"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 Page 3 of 11 Downloaded on : Fri May 03 21:11:29 IST 2024 NEUTRAL CITATION C/SCA/5170/2024 ORDER DATED: 19/04/2024 undefined 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."
By placing reliance upon the aforesaid section, he has submitted that respondent is permitted not only to oppose the reliefs sought on the ground of petitioner's adultery, cruelty or desertion but also can file a counter-claim for any relief under this Act on that ground. It is further submitted that the proposed issues which have been framed by the learned Family Court is totally against the settled principles of law and also against the provisions of Section 23A of the Act.
6.2. In support of his contentions, learned advocate for the petitioner has placed reliance upon the decision of Nitaben Dinesh Patel Vs. Dinesh Dahyabhai Patel reported in 2021 LawSuit(SC) 619.
6.3. It is further submitted by the learned advocate for the petitioner that the application for recasting of issues was Page 4 of 11 Downloaded on : Fri May 03 21:11:29 IST 2024 NEUTRAL CITATION C/SCA/5170/2024 ORDER DATED: 19/04/2024 undefined submitted at a very belated stage and when the issues were framed at Exhibit-63, there was no request made by the respondent-wife to add the issue of maintenance. It is further submitted that the learned Family Court has failed to appreciate the ratio laid down in the decision in the case of Nitaben Dinesh Patel (supra).
7. Per contra, learned advocate Ms. Kirti S. Pathak for respondent has supported the decision of the learned Family Court and has submitted that no interference is required to be entertained by this Court and the petition deserves to be dismissed. It is further submitted that the petition itself is not maintainable as huge amount of maintenance is due and payable by the petitioner-husband and there are series of litigations pending between the parties. It is further submitted that since the petitioner has not paid the amount of maintenance, which was awarded in favour of the respondent-wife, the issue which sought to be added would not affect adversely to the petitioner.
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8. The limited issue which is to be considered by this Court is whether the learned Family Court has committed any error in the eye of law while allowing the application. Section 23A of the Act which has been reproduced hereinabove refers to a right of the respondent to oppose the reliefs sought on the ground of petitioner's adultery, cruelty or desertion. The counter-claim can be filed by the respondent if any proceedings for divorce for judicial separation or restitution of conjugal rights is filed by the petitioner. In the present case, by way of a counter-claim, the respondent has alleged non-payment of maintenance by the petitioner's husband. The issue which was sought to be added is not within the scope of a counter-claim, which has been contemplated under Section 23A of the Act.
9. In the case of Nitaben Dinesh Patel (supra), the Hon'ble Apex Court has discussed the scope of Section 23A of the Act, which is reproduced hereinbelow;
9. As per para 37, the appellant-original defendant has proposed the relief to declare that the marriage between the respondent-original plaintiff with Hinaben Manubhai Panchal on 14.12.2006 is illegal, void Page 6 of 11 Downloaded on : Fri May 03 21:11:29 IST 2024 NEUTRAL CITATION C/SCA/5170/2024 ORDER DATED: 19/04/2024 undefined and voidable and further to declare that Hinaben Manubhai Panchal is not a legal wife of the respondent - original plaintiff and also to declare that the original plaintiff - respondent herein is living with Hinaben Manubhai Panchal in adultery. It is also further prayed to declare that the son 'Dev' born through the respondent and Hinaben Manubhai Panchal is not a legitimate child of the respondent-original plaintiff.
On a fair reading of Section 23A of the Hindu Marriage Act, we are afraid that the relief sought by way of counter claim in the Hindu Marriage Petition filed by the respondent can be claimed. Section 23A of 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 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."
On a fair reading of Section 23A of the Hindu Marriage Act, the respondent in any proceedings for divorce or judicial separation or restitution of conjugal rights, may not only oppose the relief sought on the ground of adultery, cruelty or desertion, but also make a counterclaim for any relief under Hindu Marriage Act, i.e, on the ground of petitioner's adultery, cruelty or desertion and if the petitioner's adultery, cruelty or desertion is proved, the court may give to the respondent any relief under Hindu Marriage Act to which he or she would have been entitled if he or she had presented a petition seeking such relief on that ground, i.e., seeking a divorce or judicial separation on the ground of petitioner's adultery or cruelty. Therefore, by way of counter claim, the respondent in any proceedings for divorce or judicial separation or restitution of conjugal rights can pray for the relief by way of counter claim only those reliefs which can be prayed and/or granted under the Hindu Marriage Act, namely, the relief under Section 9 (Restitution of conjugal rights); Section 10(judicial separation); Sections 11 & 12(declaration of marriage between the Page 7 of 11 Downloaded on : Fri May 03 21:11:29 IST 2024 NEUTRAL CITATION C/SCA/5170/2024 ORDER DATED: 19/04/2024 undefined petitioner and the respondent void) and Section 13 (divorce). Therefore, the respondent to the aforesaid proceedings can pray for the aforesaid reliefs only by way of counter claim and that too between the petitioner and the respondent. No relief can be prayed qua the 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. Therefore, by virtue of Section 23A of the Hindu Marriage Act, it is not open for the appellant herein - original defendant to seek declaration to the effect that the marriage between the respondent - original plaintiff and the third party - Hinaben Manubhai Panchal is void. No relief can be prayed by way of counter claim even against 'Dev', the son born out of the alleged wedlock between the respondent - original plaintiff and the third party - Hinaben Manubhai Panchal. In such a situation, the only remedy available to the appellant would be to file a substantive suit and/or initiate independent proceedings claiming such reliefs. But such reliefs cannot be claimed by way of counter claim under Section 23A of the Hindu Marriage Act in the petition for divorce filed by the respondent herein against the appellant. At the most, the appellant herein - original defendant by way of counter claim could have claimed the relief and prayed for divorce and/or judicial separation on the ground of husband's adultery. Beyond that, no relief which cannot be granted under the provisions of the Hindu Marriage Act can be claimed by way of counter claim.
10. What is important in Section 23A of the Act is respondent may not only oppose the reliefs sought on the ground of petitioner's adultery, cruelty or desertion but also make a counter-claim for any reliefs under this Act on that ground.
(emphasize supplied)
11. Thus, the provisions under Section 23(A) of the Act is very clear and there is no ambiguity in interpretation. The Page 8 of 11 Downloaded on : Fri May 03 21:11:29 IST 2024 NEUTRAL CITATION C/SCA/5170/2024 ORDER DATED: 19/04/2024 undefined respondent along with resistance can also file a counter-claim provided the counter-claim is raised on the ground of petitioner's adultery, cruelty or desertion. The issue of maintenance in the proceedings clearly does not form a relief under the Act on the ground of petitioner's adultery, cruelty or desertion. Right and claim of maintenance is a separate remedy, which is available to the respondent-wife by either initiating proceedings for maintenance, or if, proceedings have been initiated, to pursue those proceedings further.
12. From the meaningful reading of the impugned order and judgment, it can be apparently seen that the learned Family Court has committed an error of law and the learned Family Court has misread the provisions contained in Section 23A of the Act and granted the application. It seems that the learned Family Court has taken into consideration the provisions of Order 14 Rule 1 of the Code of Civil Procedure, 1908, wherein the issues are to be framed on material proposition of law and fact, which affirms by one party and denied by the other.
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However, in the present case, in the background of the above discussion, the proposed issue which was sought to be added, is outside the scope of the provisions of Section 23A of the Act. The learned Family Court has discussed the case of Umarshi Kayabhai Chande Vs. Vanitaben Umarshi Chande reported in 2023 LawSuit(Guj) 2329 in the impugned judgment.
13. It is the submission of learned advocate for the petitioner that the said decision is not applicable as in the said decision, there was no occasion for the Co-ordinate Bench of this Court to consider the decision of Nitaben Dinesh Patel (supra).
14. On considering the decision of Umarshi Kayabhai Chande (supra), it is found that there was no occasion for the Co-ordinate Bench to discuss the decision of Nitaben Dinesh Patel (supra).
15. Thus, in the totality of the facts and in view of the above observations, this Court is of the opinion that the learned Family Court has committed an error of law which requires to be Page 10 of 11 Downloaded on : Fri May 03 21:11:29 IST 2024 NEUTRAL CITATION C/SCA/5170/2024 ORDER DATED: 19/04/2024 undefined interfered. The order dated 25.01.2024 passed by the learned Family Court, Vadodara in Family Suit No.534 of 2012 is hereby quashed and set aside. Application at Exhibit-150 is hereby dismissed. The present petition is allowed accordingly.
Direct Service is permitted.
(D. M. DESAI,J) RINKU MALI Page 11 of 11 Downloaded on : Fri May 03 21:11:29 IST 2024