# NITABEN DINESH PATEL v. DINESH DAHYABHAI PATEL

- **Citation:** [2021] 8 S.C.R. 618
- **Court:** Supreme Court of India
- **Decided:** 2021-10-07
- **Case number:** Civil Appeal Nos. 5901-5902 of 2021
- **Bench:** M. R. Shah, A. S. Bopanna
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/nitaben-dinesh-patel-v-dinesh-dahyabhai-patel-35246
- **Pages:** 23

## Headnote

Hindu Marriage Act, 1955 - s.23A - Proceedings for divorce
or judicial separation or restitution of conjugal rights - Counterclaim 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 - Counterclaim 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

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[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 - Counterclaim 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 - Counterclaim 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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provides 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 the 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. In the present case, the factum of actual
marriage on 14.12.2006 came to the knowledge of the appellantwife when the marriage certificate was produced during the crossexamination of the respondent-husband and immediately
thereafter the application for amendment was made. Therefore,
as such, and looking to the case on behalf of the appellant, so
pleaded in the written statement, the Family Court was right and
justified in allowing the amendment. The High Court committed
error in misapplying the proviso to Order VI Rule 17 CPC and
erred in rejecting the amendment. [Para 7][635-B-D; 636-A-D]
2.1. Now so far as the amendment sought, for incorporating
prayer to declare the second marriage of respondent as illegal,
void, voidable etc. is concerned, it was in the form of counterclaim. 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 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 the appellant,
the cause for counter claim had accrued after the appellantdefendant has delivered her defence (written statement) and more
particularly when during the cross-examination of the plaintiff
(respondent herein) the factum of marriage with 'H' on 14.12.2006
was admitted and the marriage certificate was produced.
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Therefore, the High Court is not justified and/or right in refusing
to allow the counter claim as proposed on the ground that the
same is not permissible after the appellant as defendant
has delivered her defence by filing the written statement.
[Para 8][636-D-H]
2.2. However, 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 petitioner
and the respondent void) and Section 13 (divorce). Therefore,
the respondent to the proceedings in question 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- original defendant to seek
declaration to the effect that the marriage between the respondent
- original plaintiff and the third party - 'H' is void. No relief can
be prayed by way of counter claim even against the son born out
of the alleged wedlock between the respondent - original plaintiff
and the third party - 'H'. 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 against the appellant. At the most, the
appellant- 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. [Para 9][637-F-H;
638-A-F]
Andhra Bank v. ABN Amro Bank (2007) 6 SCC 167 ;
Chander Kanta Bansal v. Rajinder Singh Anand (2008)
NITABEN DINESH PATEL v. DINESH DAHYABHAI PATEL
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5 SCC 117 : [2008] 4 SCR 748; Abdul Rehman v. Mohd.
Ruldu (2012) 11 SCC 341 : [2012] 8 SCR 922 ;
Gurbakhsh Singh v. Buta Singh (2018) 6 SCC 567;
Ashok Kumar Kalra v. Wing Commander Surendra
Agnihotri (2020) 2 SCC 394; Ajendraprasadji N.
Pandey v. Swami Keshavprakeshdasji N. (2006) 12
SCC 1 : [2006] 10 Suppl. SCR 477; M. Revanna v.
Anjanamma (dead) by Lrs. (2019) 4 SCC 332; Vidyabai
v. Padmalatha (2009) 2 SCC 409 : [2008] 17 SCR 505
- referred to.
Damodar v. Urmila, AIR 1980 Raj. 57 - approved.
Case Law Reference
(2007) 6 SCC 167
referred to
Para 3.12
[2008] 4 SCR 748
referred to
Para 3.13
[2012] 8 SCR 922
referred to
Para 3.13
(2018) 6 SCC 567
referred to
Para 3.13
(2020) 2 SCC 394
referred to
Para 3.16
[2006] 10 Suppl. SCR 477
referred to
Para 4.5
(2019) 4 SCC 332
referred to
Para 4.5
[2008] 17 SCR 505
referred to
Para 4.5
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos.59015902 of 2021
From the Judgment and Order dated 27.09.2019 of the High Court
of Gujarat at Ahmedabad in R/Special Civil Application Nos.11379 and
16101 of 2018.
Puneet Jain, Ms. Christi Jain, Advs. for the Appellant.
Mihir Thakore, Sr. Adv., Ms. Aastha Mehta, Tirathraj Pandya,
Jaimin Dave, Ms. Vishakha, Ms. Prema Mohapatra, Ms. Deepanwita
Priyanka, Advs. for the Respondent.
The Judgment of the Court was delivered by
M. R. SHAH, J.
1. Feeling aggrieved and dissatisfied with the impugned common
judgment and order dated 27.09.2019 passed by the High Court of Gujarat
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at Ahmedabad in SCA No. 11379/2018 and SCA No. 16101/2018, by
which the High Court has dismissed writ petition being SCA No. 11379/
2018 and has allowed SCA No. 16101/2018 and has quashed and set
aside the order passed by the learned Family Court dated 8.5.2018 passed
below the application (Exhibit 281) in Family Suit No. 862/2007, the
original writ petitioner in SCA No. 11379/2018 and the original respondent
in SCA No. 16101/2018 has preferred the present appeals.
2. The facts leading to the present appeals in nutshell are as under:
The marriage between the appellant and the respondent took place
on 1.3.1987 according to the Hindu rites. Out of the said wedlock, they
had a child, named as 'Devashya' on 3.5.1990. The appellant was also a
doctor, but it was the case on behalf of the appellant that after the birth
of the child she stopped practising as a doctor and remained housewife.
The dispute arose between the husband and the wife and the respondenthusband filed a Hindu Marriage Petition No. 862 of 2007 before the
learned Family Court under Section 13 of the Hindu Marriage Act for
dissolution of marriage, mainly on the ground that the appellant-wife is
guilty of cruelty. The learned Family Court issued notice. The appellantwife appeared and filed reply (Exhibit 9) on 11.4.2008. A rejoinder affidavit
was also filed by the respondent-husband (Exhibit 10) on 22.9.2008.
The appellant further submitted an affidavit-in-sur-rejoinder as Exhibit
13 in the month of November, 2008. The respondent-husband also filed
an affidavit of evidence on record. According to the appellant-wife, the
respondent-husband deserted her and their son on 9.2.2006 and the
respondent-husband refused to provide maintenance for her and their
son.
2.1 At this stage, it is required to be noted that in the written
statement filed by the appellant-wife, it was the case on behalf of the
appellant that the respondent-husband as on today is cohabiting with
another woman, openly moves around with the said woman and introduces
the said lady as his new wife and is travelling not only in the country but
abroad with her. It was the case on behalf of the appellant-wife in the
written statement that since the respondent-husband wants to marry the
said woman, a false and fabricated story is placed before the Court.
However, in the rejoinder affidavit filed by the respondent-husband, so
stated in para 20, it was the case on behalf of the respondent-husband
that so far as Ms. Hinaben Manubhai Panchal is concerned, the said
lady is a manager in the hospital run by him and she is looking after the
NITABEN DINESH PATEL v. DINESH DAHYABHAI PATEL
[M. R. SHAH, J.]
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hospital and accounts as her job, which has nothing to do with the present
dispute between the parties. It was the case on behalf of the appellant
that subsequently she got to know that the respondent-husband had
married the aforesaid Ms. Hinaben Manubhai Panchal and has
suppressed the said fact, she filed an application (Exhibit 281) seeking
amendment in her written statement by adding paras 35,36 & 37, which
read as under:
"Para No.35:
The opponent submits that the petition married with one Hinaben
Manubhai Panchal on 14.12.2006 at Sudama resort, Paldi,
Ahmedabad. The opponent stated that after the marriage
solemnized between the petitioner and Hinaben, the petitioner filed
the petition for divorce in the month of July 2007 against the
opponent. The petitioner never informed to the Hon'ble Court
that he married with Hinaben on 14.12.2006. When the petition
was filed that time the petitioner intentionally suppress material
facts with malafide intention. When the petitioner did not come
before the Hon'ble Court with clean hand than the petitioner petition
is legally not tenable under the provisions of the law. Moreover,
due to the marriage life with Hinaben, the petitioner have having
illegitimate son Dev, who is as on today residing with the petitioner;
The petitioner stated that there is no divorce granted in favour of
the petitioner by the Hon'ble Court or the by the family court and
opponent are as today alive even though the petitioner married
with Hina Panchal, only for sex purpose. Even the petitioner gone
to many places of the World with Hina and they were residing to
gather because the petitioner accepted Hina as wife.
Moreover, the petitioner went to so many places with in India,
either for honeymoon purpose or for enjoyment. The petitioner as
on today living the life in adultery therefore the divorce cannot be
granted in favour of the petitioner. Moreover, the person who
does not come before the Hon'ble Court with clean hands are not
entitled any relief from the Court. Therefore, the petition filed by
the petitioner are require to dismiss with cost.
The opponent states that as on today the marriage between the
petitioner and the respondent are continued, no divorce are granted
by any court even though the petitioner married with Hina Panchal
on 14.12.2006.
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Therefore, the marriage between the petitioner and Hina Manubhai
Panchal are illegal, void and voidable. Therefore, there is a
necessary to declare by Court that the marriage between the
petitioner and Hinaben Manubhai Panchal are illegal, void and
voidable. Therefore, the present counter claim application are filed
by the petitioner.
Para No.36:-
The respondent states that by doing the marriage by petitioner
with Hinaben Panchal, it is a fraud with the respondent and
therefore the provision of the limitation are not applicable in the
present matter.
The opponent states that the cause of action of the counter claim
is arisen when the petitioner done the second marriage with
Hinaben Manubhai Panchal. The cause of action is continue day
to day for declaring between the petitioner and Hinaben marriage
illegal, void, voidable. Moreover the cause of action have arisen
when the respondent have come to know that the petitioner have
intentionally done the fraud with the respondent by doing the second
marriage with Hinaben Panchal. Even when the first marriage
between the petitioner and respondent are continued. Moreover
till the second between the petitioner and Hinaben Panchal are
not declare illegal, void and voidable till that the cause of action of
the counter claim are continued. The marriage between the
petitioner and Hinaben Panchal are illegal, void and voidable
therefore the cause of action of the present counter claim
application are arisen in the jurisdiction of this Court.
Para No.37:-
Therefore, the respondent prays that,
a.
Your Honor may allow the present counter claim application
and declare that the marriage between the petitioner with
Hina Manubhai Panchal dated 14.12.2006 are illegal, void
and voidable. Further declare that Hina Panchal is not the
legal wife of the petitioner and also declare that the petitioner
are living with Hina Panchal in adultery.
b.
Your Honor may declare that son Dev, born through the
petitioner and Hinaben Panchal marriage life is illegitimate
child of the petitioner.
NITABEN DINESH PATEL v. DINESH DAHYABHAI PATEL
[M. R. SHAH, J.]
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c.
Your Honor grant any other relief which your Honor think
proper and reasonable.
d.
Cost of this application.
e.
The proper court fees are affixed upon the application."
2.2 By order dated 8.5.2018, the learned Family Court partly
allowed the said application (Exhibit 281) and allowed the amendments
by permitting the appellant-wife to incorporate paras 35 and 36 in the
written statement and refused to permit the appellant-wife to amend the
written statement as per para 37. At this stage, it is required to be noted
that before the learned Family Court, the appellant-wife in support of
her prayer to permit the amendment by adding para 37 heavily relied
upon the provisions of Section 23A of the Hindu Marriage Act.
2.3 Aggrieved by the order passed by the learned Family Court
rejecting her prayer to add the prayer clause in terms of para 37 and
refusing to permit the amendment in terms of para 37, the appellantwife preferred SCA No. 11379/2018 before the High Court.
Simultaneously, the respondent-husband also challenged the order passed
by the learned Family Court allowing and/or permitting the appellantwife to add paras 35 and 36 in the written statement before the High
Court being SCA No. 16101/2018. By the impugned judgment and order,
the High Court has allowed the respondent-husband's writ petition being
SCA No. 16101/2018 and dismissed the appellant-wife's writ petition
being SCA No. 11379/2018 on the ground that the amendment could not
be allowed at this belated stage. However, the High Court in the impugned
judgment and order has observed that the appellant can file a separate
suit seeking for a declaration that the second marriage of the respondenthusband is void.
2.4 Feeling aggrieved and dissatisfied with the impugned common
judgment and order passed by the High Court, rejecting the application
(Exhibit 281) preferred by the appellant-wife and not permitting the
amendment as per paras 35, 36, and 37 in the written statement, the
appellant-wife has preferred the present appeals. At this stage, it is
required to be noted that the proposed prayer in terms of para 37 to
declare that the second marriage between the respondent-husband and
Hinaben Manubhai Panchal dated 14.12.2006 is illegal, void and voidable
was as a counter claim and for that Section 23A of the Hindu Marriage
Act was relied upon.
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3. Shri Puneet Jain, learned Advocate has appeared on behalf of
the appellant-wife and Shri Mihir Thakore, learned Senior Advocate,
assisted by Ms. Aastha Mehta, learned Advocate, has appeared for the
respondent-husband.
3.1 Shri Puneet Jain, learned Advocate appearing on behalf of the
appellant has vehemently submitted that the marriage between the
appellant and the respondent was solemnized on 1.3.1987 and a child
named 'Devashya' was born.
3.2 It is submitted that during the subsistence of the marriage, the
respondent-husband developed illicit relationship with one Hinaben
Manubhai Panchal. The respondent-husband filed a petition under Section
13 of the Hindu Marriage Act on 6.8.2007 seeking divorce from the
appellant. The fact regarding his entering into a marriage with the
aforesaid Hinaben Manubhai Panchal on 14.12.2006 was deliberately
suppressed by the respondent-husband. It is submitted that however at
the relevant time the fact of illicit relationship of the respondent with
Hinaben Manubhai Panchal was only known to the appellant and specific
submissions/averments were made in the written statement dated
19.6.2008.
3.3 It is submitted that in the rejoinder affidavit, as such, the
respondent-husband did not specifically deny the allegations of illicit
relationship with Hinaben Manubhai Panchal but submitted that so far
as Ms. Hinaben Manubhai Panchal is concerned, the said lady is a
manager in the hospital run by him and she is looking after the hospital
and accounts as a job.
3.4 It is submitted that when the rejoinder affidavit was filed in
2008, the respondent-husband did not disclose the factum of marriage
on 14.12.2006 between the respondent-husband and the said Hinaben
Manubhai Panchal. It is submitted therefore and thus the appellant was
not aware about the respondent's entering into the marriage with Hinaben
Manubhai Panchal earlier. It is submitted that it came on record during
the cross-examination of the respondent which concluded in 2017 that in
fact he had entered into a second marriage with Hinaben Manubhai
Panchal on 14.12.2006. Even the marriage certificate was produced on
record as Exhibit 200. It also came on record that the respondent has a
son named 'Dev' from the said illegal relationship and his birth certificate
has also been produced on record as Exhibit 201.
NITABEN DINESH PATEL v. DINESH DAHYABHAI PATEL
[M. R. SHAH, J.]
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3.5 It is submitted that therefore the appellant was absolutely
justified in submitting the application (Exhibit 281) for amendment of the
written statement to add paras 35 and 36 to plead the facts regarding the
second marriage and also to seek relief in the nature of counter claim
vide para 37 seeking a declaration inter alia that the marriage between
the respondent and the said Hinaben Manubhai Panchal is null and void
and that Hinaben Manubhai Panchal is not a legal wife of the respondenthusband and that he was living with her in adultery.
3.6 It is submitted that a declaration was also sought that the son
'Dev' born to the respondent with Hinaben Manubhai Panchal is an
illegitimate child.
3.7 It is submitted that however the learned Family Court allowed
the application in part allowing addition of paras 35 and 36 but did not
permit amendment in the written statement to add/introduce counter
claim in terms of para 37. It is submitted that even the order dated
8.5.2018 passed by the learned Family Court allowing the introduction/
addition of paras 35 & 36 has also been set aside by the High Court, by
the impugned judgment and order.
3.8 Shri Puneet Jain, learned Advocate appearing on behalf of the
appellant has vehemently submitted that, as such, in the facts and
circumstances of the case, narrated hereinabove, the application filed
by the appellant-wife for amendment of the written statement is required
to be allowed in toto. It is submitted that the fact regarding actual marriage
of the respondent-husband with Hinaben Manubhai Panchal (third party)
was not known to the appellant, which fact came to the knowledge only
during cross-examination of the respondent in the present proceedings
when the marriage certificate(|Ex.200) as well as the birth certificate of
his son 'Dev' (Ex.201) out of the marriage between the respondent and
Hinaben Manubhai Panchal came on record as Ex. 201.
3.9 It is submitted that soon thereafter the appellant filed an
application for impleadment of Ms. Hinaben Manubhai Panchal as a
party and the application for amendment of the written statement, Ex.
281. It is submitted that therefore at the first available opportunity after
the appellant came to know about the actual marriage between the
respondent and Hinaben Manubhai Panchal, which came to light in the
year 2017, the application (Ex. 281) was filed and therefore the same
ought to have been allowed.
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3.10 It is submitted that the High Court has materially erred in
rejecting the application (Ex. 281) on the ground that once the written
statement has been filed, the defendant cannot be permitted to amend
the written statement. It is submitted that in the facts and circumstances
of the case, the High Court has erred in relying upon and/or has
misconstrued the provisions of Order VIII, Rules 8 & 9 CPC and proviso
to Order VI Rule 17 CPC.
3.11 It is submitted that even the factum of actual marriage
between the respondent and Hinaben Manubhai Panchal on 14.12.2006
came to the knowledge of the appellant after filing of the written statement
and therefore the appellant can be permitted to amend the written
statement bringing on record the factum of actual marriage on 14.12.2006
between the respondent and Hinaben Manubhai Panchal and the bar
contained in proviso to Order VI rule 17 CPC shall not come in the way
and in any case the same may be permitted with the leave of the Court
to either amending the written statement or by filing an additional written
statement.
3.12 It is submitted that as such there was no delay in filing the
application (Ex.281) under Order VI Rule 17 CPC from the date of
knowledge of the actual marriage which came to light during the crossexamination of the respondent. It is submitted that even otherwise delay
is no ground for refusal of prayer for amendment of a written statement.
Reliance is placed on the decision of this Court in the case of Andhra
Bank v. ABN Amro Bank, (2007) 6 SCC 167 (para 5). It is submitted
that even the High Court has proceeded on an erroneous premise assuming
knowledge of illicit relationship as knowledge of marriage between the
respondent and Hinaben Manubhai Panchal.
3.13 It is further submitted that power to allow amendment is
wide and is to be liberally construed; the Court is only required to see
that if the amendment causes any prejudice to the other party. It is
submitted that as such the learned Family Court has specifically found
that no prejudice shall be caused to the respondent due to the amendment.
Reliance is placed on the decisions of this Court in the cases of Chander
Kanta Bansal v. Rajinder Singh Anand, (2008) 5 SCC 117 (para
11); Abdul Rehman v. Mohd. Ruldu, (2012) 11 SCC 341 (para 11);
and Gurbakhsh Singh v. Buta Singh, (2018) 6 SCC 567 (paras 4 &
5).
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3.14 It is submitted that as such the underlying principle behind
allowing the application under Order VI Rule 17 CPC or to raise a counter
claim under Order VIII Rule 6A is to prevent multiplicity of proceedings.
It is submitted that the grounds raised in the amendment vide paras 35
and 36 are not only in the nature of a defence against the allegations of
desertion and cruelty, but also constitute necessary pleadings in support
of relief sought for in the counter claim. It is submitted that the amendment
sought for would not change the character of the suit.
3.15 It is further submitted that even the relief sought in terms of
para 37 is the counter claim for declaring the marriage of the respondenthusband with Hinaben Manubhai Panchal as null and void and for the
legitimacy of their son 'Dev' is consequential in view of the undisputed
and admitted fact that the marriage between the appellant and the
respondent is still subsisting. It is submitted that it is to be noted that as
such the present proceedings filed by the respondent-husband are to
seek a decree for divorce under Section 13 of the Hindu Marriage Act
which has yet not been decided and therefore as on today the marriage
between the appellant and the respondent is subsisting. It is submitted
that therefore the marriage between the respondent and Hinaben
Manubhai Panchal is thus illegal under Section 5(a) of the Hindu Marriage
Act. It is submitted that therefore the relief sought for in the counter
claim is undeniable on admitted facts and will have to be granted
"irrespective" of the outcome of the petition filed by the respondent
under Section 13 of the HMA. It is submitted that as such the counter
claim is permissible as per Section 23A of the HMA.
3.16 It is further submitted that even otherwise the cause of action
for filing the counter claim has arisen after filing of the written statement
and more particularly in the cross-examination of the respondent-husband
that the respondent had got married to Hinaben Manubhai Panchal on
14.12.2006. It is submitted that therefore also the declaration as sought
for in para 37 by way of counter claim ought to have been permitted/
allowed. Reliance is placed on the decision of this Court in the case of
Ashok Kumar Kalra v. Wing Commander Surendra Agnihotri, (2020)
2 SCC 394 (paras 12 to 18 & 21).
3.17 It is further submitted that even otherwise a counter claim is
in any case is to be decided as an independent suit and so long as the
relief sought for is otherwise within limitation, the same can be entertained.
In the present case, the petition under Section 13 was still at the stage of
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evidence, wherein the appellant - original defendant has to lead evidence
in defence who could lead common evidence for defence and counter
claim and the respondent-husband can be permitted to rebut, if so
required. It is submitted that therefore no prejudice would thus be caused
to the respondent if application (Ex. 281) is allowed in toto.
3.18 Making the above submissions and relying upon the aforesaid
decisions, it is prayed to allow the present appeals.
4. The present appeals are vehemently opposed by Shri Mihir
Thakore, learned Senior Advocate appearing on behalf of the respondenthusband. Insofar as amendment sought vide para 37 in Ex. 281, i.e.,
declaration sought that marriage between the respondent-husband and
Hinaben Manubhai Panchal is null and void is concerned, it is submitted
that such prayer which is in the nature of counter claim cannot be granted.
4.1 It is submitted that it is true that Section 23A of the Hindu
Marriage Act permits the respondent to raise a counter claim. It is
submitted that however under Section 23A, by way of counter claim,
firstly, the respondent can seek relief against the petitioner on the ground
of petitioner's adultery, cruelty or desertion and secondly, the petitioner
can seek only such relief as is maintainable under the Hindu Marriage
Act, 1955 and not otherwise. It is submitted that under the HMA, 1955
the respondent can seek relief under Section 9 to 13 only. It is submitted
that therefore by virtue of Section 23A, it is not open for the respondent
(appellant herein) to seek a declaration to the effect that marriage between
the respondent-husband and the third party (Hinaben Manubhai Panchal)
is void. It is submitted that such relief falls within the ambit of Section 34
of the Special Relief Act, 1963 and in any case, it does not fall within any
of the provisions of Sections 9 to 13 of the Hindu Marriage Act. Reliance
is placed on the decision of the Rajasthan High Court in the case of
Damodar v. Urmila, AIR 1980 Raj. 57.
4.2 Now so far as the amendment sought vide paragraphs 35 and
36 in Ex. 281 application is concerned, it is vehemently submitted that
this prayer is required to be rejected inter alia on the ground that it is
barred by proviso to Order VI Rule 17 CPC. It is submitted that as such
the appellant-wife had knowledge about the factum of alleged respondenthusband's second marriage with Hinaben Manubhai Panchal since
23.03.2007. It is submitted that the appellant-wife in the crossexamination recorded as Ex.359 has categorically admitted that her
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lawyer applied for so called marriage certificate on 12.03.2007 and he
was supplied copy thereof on 23.03.2007. It is submitted that she also
categorically admitted that despite having knowledge about the alleged
marriage certificate since 23.03.2007, she did not mention about the
alleged marriage of the respondent-husband with Hinaben Manubhai
Panchal. It is submitted that therefore it is not open for the appellantwife to file such an application at such a belated stage.
4.3 Learned Senior Counsel appearing on behalf of the respondenthusband has relied upon the following timeline which according to him is
relevant for the purpose of considering amendment sought vide
paragraphs 35 and 36 in Ex.281 application, which are as under:
Date
Event
2007
H.M.P. Suit No.862 of 2007 was instituted
27.03.2007
Appellant - Wife admittedly acquired knowledge about
alleged marriage of Respondent - Husband
11.04.2008
Appellant - Wife filed written statement
22.09.2008
Respondent - Husband filed rejoinder
20.04.2017
Application filed for draft amendment
It is submitted that not only that but in the impugned judgment and
order the High Court has also arrived at the specific conclusion that the
appellant-wife had definite knowledge about the alleged marriage since
2007.
4.4 It is submitted that today we are at the stage of crossexamination of the appellant-wife and at this stage with a mala fide
intention of delaying the proceedings such an application is filed. It is
submitted that such an amendment is hit by proviso to Order VI Rule 17
CPC.
4.5 It is further submitted that proviso to Order VI Rule 17 CPC
virtually prevents an application for amendment of pleadings from being
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 the trial and a trial is deemed to
have commenced. It is submitted therefore that the proviso to an extent
curtails absolute discretion to allow amendment at any stage. The burden
is on the person who seeks an amendment after commencement of the
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trial to show that inspite of due diligence, such an averment could not
have been made earlier. Heavy reliance is placed on the decisions of
this Court in the cases of Ajendraprasadji N. Pandey v. Swami
Keshavprakeshdasji N., (2006) 12 SCC 1 (Paras 55,60 to 62); M.
Revanna v. Anjanamma (dead) by Lrs., (2019) 4 SCC 332 (paras 7
to 9); Chander Kanta Bansal (supra) (paras 11 to 13,15, 17, 19 &
20); and Vidyabai v. Padmalatha, (2009) 2 SCC 409 (paras 11 to
13, 19 & 21).
4.6 It is submittedthat by virtue of Section 10 of the Family Courts
Act, 1984 and Section 21 of Hindu Marriage Act, 1955, the provisions of
CPC apply to proceedings under HMA and therefore proviso to Order
VI Rule 17 CPC would come into play.
4.7 Making the above submissions and relying upon the aforesaid
decisions, it is prayed to dismiss the present appeals.
5. We have heard the learned counsel for the respective parties
at length.
By the impugned judgment and order, the High Court has dismissed
the application (Ex.281) filed by the appellant herein in the family Court
by which the appellant prayed to amend the written statement as per
paragraphs 35, 36 and 37, reproduced hereinabove. By incorporating
paragraphs 35 and 36, the appellant proposed to amend the written
statement bringing on record the factum of marriage of the respondent
with one Hinaben Manubhai Panchal on 14.12.2006 and other factual
aspects. So far as the amendment sought vide para 37 is concerned, the
same was for incorporating the prayer by way of counter claim under
Section 23 of the Hindu Marriage Act. As observed hereinabove, the
learned Family Court partly allowed the application (Ex.281) and
permitted the amendment in the written statement as per paras 35 and
36. However, rejected the amendment sought vide para 37. While
refusing the amendment sought qua para 37, the learned Family Court
observed that the appellant - original defendant cannot seek the proposed
relief and in view of Section 23A of the Hindu Marriage Act, the defendant
can seek relief under the Hindu Marriage Act only on the ground of
adultery, cruelty or desertion and cannot seek the relief to declare that
the second marriage of the respondent with Hinaben Manubhai Panchal
(third party) is illegal, void, voidable etc. and as the appellant is not seeking
any relief under the Hindu Marriage Act, she cannot seek the relief as
proposed in para 37 as a counter claim. However, by the impugned
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judgment and order, the High Court has dismissed the entire application
(Ex.281) mainly on the ground that once a written statement is filed and
the trial has commenced, application to amend the written statement in
exercise of powers under Order VI Rule 17 CPC is not required to be
entertained and that in view of Order VIII Rule 6A CPC, the defendant
can pray for a counter claim against the plaintiff either before or after
the filing of the suit but before the defendant has delivered his defence
(written statement) or before the time limited for delivering his defence
has expired. Mainly relying upon the embargo under Order VI Rule 17
CPC and Order VIII Rule 6A CPC, the High Court has dismissed the
application (Ex.281) in toto.
6. While deciding the issues involved in the present appeals, the
relevant provisions of the CPC, namely, Order VI Rule 17 CPC and
Order VIII Rule 6A CPC are required to be referred to, which read as
under:
"Order VI Rule 17
17.