Counter claim in HMA cases is permissible or not
Querist :
Anonymous
(Querist) 04 December 2010
This query is : Resolved
R/Members
My friend's wife has filed a petition us 9 of HMA now my friend wants to file divorce petition as counter claim in same petition us 9 of HMA,is it permissible,kindly suggest.Thanks
sachin sethi
(Expert) 04 December 2010
No Dear,, it is not permissible.. you see nature of the two provisions is contradictory to each other.. section 9 is a provision for restitution of conjugal rights whereas petition for divorce under section 13-a is a provision for decree of divorce.. as such no counter claim can be filed to the effect of obtaining decree of divorce in a proceeding under section 9 of the Hindu marriage act...
More so in my opinion your friend is also unable to file a petition of divorce in view of earlier petition (till the earlier petition is decided on merits)filed under restitution of conjugal rights filed by the wife...
Ramakrishnan.V
(Expert) 04 December 2010
7[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].
7 Inserted by Act No. 68 of 1976, w.e.f. 27th. May, 1976.
Hence counter claim is allowable under the Hindu Marriage Act of 1955. Hence kindly understand respected experts you are not correct which I have to air.
Ramakrishnan.V.
G. ARAVINTHAN
(Expert) 05 December 2010
not possible. a counter claim can be filed in a case of divorce by one of the party to the proceedings
Devajyoti Barman
(Expert) 05 December 2010
I do not agree.
The husband can very much pray for counterclaim by way of divorce in a suit for restitution of conjugal rihts. There is absolutely no bar at all.
In several of my cases such counterclaim is pending for trial.
DEFENSE ADVOCATE.-firmaction@g
(Expert) 06 December 2010
Such matters need tactics than law.
Even if suppose you file counter claim still you have to prove by evidence.
