An Underused Provision of Hindu Marriage Act
Hindu Marriage Act was passed in 1955 in which, for the first time, divorce could be granted against an erring spouse as per law. However, the Act underwent many changes, and another section, 23A, was added in 1976 vide Marriage Law (Amendment) Act 68 of 1976. The legislative intent has been to save the respondent from filing a separate petition for relief under the Act. This allows a respondent to set up a counterclaim for relief under this Act, as the Civil Procedure Code allows.
Section 23A of the Hindu Marriage Act reads as follows – 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..
To explain the same, it means that the respondent can be granted relief under section 23-A of the act in any proceeding for Divorce, Judicial Separation or Restitution of Conjugal Rights. A spouse facing any proceeding under the Hindu Marriage Act, when the petitioner is an erring party, can not only defend the same but also highlight and bring to the fore evidence of the wrongs committed by the petitioner and secure reliefs as if the petition was presented by him/ her.
We have often seen that after filing 498A (Husband or relative of husband of a woman subjecting her to cruelty: Proposed Section 84 of The Bharatiya Nyaya Sanhita, 2023), Domestic Violence or any proceedings under maintenance, wives usually resort to any action under Hindu Marriage Act, 1955. They are seeking either Divorce on the grounds of cruelty or desertion or even going to the extent of filing a Restitution of Conjugal Rights case. The response of man is usually to defend that case. However, the proper remedy may be filing a counterclaim under Section 23A of the Hindu Marriage Act. The said section was added to the act to ensure that in matrimonial matters, a party to a proceeding shall not suffer from protracted litigation merely because s/he was not prompt in taking their case to court. The party seeking any relief could be either the petitioner or the respondent, and prima facie, there is no reason why the Parliament should try to make a distinction when the aggrieved party is the petitioner, who made the original petition, or the person requiring relief is the respondent. The fact that under 23A, the respondent can also be granted a relief indicates that the Parliament, in its wisdom, never intended to make any such distinction.
As the provision is so rarely used, more judicial pronouncements must be made. However, there are pronouncements from Delhi, Allahabad, Andhra Pradesh, Punjab, and Haryana High Courts to aid anyone filing a counterclaim. The courts have held that Petitions under the Restitution of Conjugal Rights can also be resisted using Sec 23A on the grounds of desertion. Similarly, any petition can be resisted and countered with a claim of Adultery, Cruelty, or any other grounds available in the Hindu Marriage Act.
Let us also examine an exciting situation: what happens when faced with a counterclaim? Does the petitioner withdraw the main petition, or is it dismissed in default? Delhi and Karnataka High Courts both held that in such scenarios, the court should decide counterclaim on merits. Though in civil cases, any party can withdraw its claim at any stage, the counterclaim can not be dismissed merely on this ground alone.
In a nutshell, any warrior brother facing a situation in which his wife has filed a case under the Hindu Marriage Act should also consider filing a counterclaim.
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