Date of Judgement:
07 October 2021
Coram:
Justice M R Shah
Justice A S Bopanna
Parties:
Appellant – Nitaben Dinesh Patel
Respondent – Dinesh Dahyabhai Patel
Subject
Relief such as divorce, judicial separation, restitution of conjugal rights and other reliefs under Hindu Marriage Act cannot be extended to a third party.
Legal Provisions
- Section 13 of the Hindu Marriage Act, 1955 – Divorce.
- Section 23A of the Hindu Marriage Act, 1955 - Relief for respondent in divorce and other proceedings.
- Order VIII Rule 6A of the Code of Civil Procedure, 1908 - Counter-claim by defendant.
- Order VI Rule 17 of the Code of Civil Procedure, 1908 - Amendment of pleadings.
Overview
- The Appellant herein is the wife of the respondent. Due to a dispute, the respondent filed a petition before the family court for divorce on grounds of cruelty. The appellant’s case was that the respondent was having an illicit relationship with another woman and alleged that the defendant instituted this suit to with an ulterior motive to get out of the legal marital relationship.
- It was later found out while cross-examining the respondent that he had married that woman and a child was born out of that illicit relationship and he had been supressing this fact. In light of this new circumstance, the appellant moved an application for amending her written statement for adding extra paras of 35,36 and 37. Para 37 being a prayer for declaring the marriage between the respondent and another woman as void and the son born to them as an illegitimate child. The family court allowed the amendment of adding paras 35 and 36 but rejected the application for addition of para 37.
- Aggrieved by the order of the family court in accepting the addition of para 37 the appellant approached the High Court. The respondent also challenged the order of the family court in partially allowing the application of amendment to the written statement. The High Court dismissed the appeal and also set aside the order of the family court in allowing the amendment of para 35 and 36 on the ground that once a written statement is filed the defendant cannot amend the written statement by referring to Order VI Rule 17 CPC. Feeling aggrieved by the same, an appeal was preferred before this court.
- The counsel for appellant pointed out that the respondent did deny having an illicit relationship. Therefore, the second marriage was null and void as the first marriage was still subsisting. It was also put forth that when the petition was filed by the respondent, he did not disclose his marriage with another woman which came on record during the cross-examination. Hence, it was argued that the appellant was justified in moving application of amendment as she had just gained knowledge of the same and the amendment did not cause any prejudice to the parties.
- The counsel for the respondent contended that a counter claim under Section 23A of the HMA (Hindu Marriage Act) can be enforced for relief only under the HMA. Therefore, the appellant cannot claim relief against a third party and her husband. It should be claimed thorough the Specific Relief Act. The counsel relied upon the timeline of events and pointed out that there was a huge gap in application for amendment while she was having the knowledge of the second marriage and hence is barred by Order VI Rule 17 CPC and Order VIII Rule 6A CPC. Hence, the prayer for dismissal of this appeal.
Issue
- Whether the High Court was erroneous in rejecting the application of amendment to para 35 and 36 on ground of Order VI Rule 17 of CPC?
- Whether the High Court was right in rejecting the amendment of para 37?
Judgement Analysis
- The court did not agree with the order of the High Court rejecting the amendment to the written statement on grounds of Order VI Rule 17 CPC. This is because the court examined this rule and pointed out that the court can allow amendment if it is convinced that in spite of the due diligence, the party was not aware of the facts. The observed the facts and came to conclusion that the appellant came to know about the second marriage only during the cross examination which was suppressed by the respondent. If new facts come into light and are a necessary part of the case, the amendment can be allowed even after the trial has started.
- This court after examining Section 23A of the HMA held that in a counter claim, a respondent can only pray for reliefs under the HMA and no relief against a third party. The court also further held that no relief can even be prayed against the son born out the second marriage. Hence, the appellant can claim such relief only thorough a substantive suit and cannot be claimed under Section 23A of the HMA.
- Hence, the court restored the judgement and order of the family court and set aside the order of the High Court and allowed amendment of para 35 and 36 as prayed for and dismissed the amendment for para 37 in the written statement.
Conclusion
A relief under Section 23A of the HMA can only be prayer for relief provided in the HMA such as divorce, restitution of conjugal rights, judicial separation and not against a third party. A prayer for declaring a second marriage as void can be claimed by a substantial suit. Amendment to a pleading should be allowed when it was shown that due diligence was followed and in spite of that, new facts were made aware.
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Questions:
1. Which Section under the HMA provides for divorce by mutual consent?
2. If the validity of the second marriage is questioned, should the aggrieved prove the validity of the first marriage first?
