In its judgement dated October 07, 2021, the Supreme Court has held that relief against a third party cannot be claimed in matrimonial proceedings under the Hindu Marriage Act.
The top court rejected the plea of a separated wife, who was seeking a declaration, that the alleged marriage between her husband and another woman was void. The court stated,
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 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.
Case:
Parties were married in 1987, had a son in 1990 and husband filed for divorce on grounds of cruelty in 2007.
According to the appellant-wife, the respondent-husband deserted her and their son in 2006 and he also refused to provide maintenance for her and their child.
Allegations by Wife
The wife submits that her husband got married with another woman in 2006 and the duo also have a son from this relationship. The wife stated that there is no divorce granted in favour of the husband by the Hon’ble Court or the by the family court, while the man continues to live with other woman, only for “sex purpose”.
The husband travels to many places with the woman in India and internationally, “either for honeymoon purpose or for enjoyment”. The husband as on today is living in adultery, therefore the divorce cannot be granted in his favour. Moreover, the person who does not come before the Hon’ble Court with clean hands are not entitled any relief from the Court.
The wife had approached court seeking:
Your Honour may allow the present counter claim application and declare that the marriage between the petitioner with Ms X is illegal, void and voidable. Further declare that Ms X is not the legal wife of the petitioner and also declare that the petitioner is living with Ms X in adultery.
It is submitted that the wife only learnt of her husband’s second marriage during the cross-examination of the husband which concluded in 2017.
Family Court
The learned Family Court partly allowed the said application in 2018. Aggrieved by the same, both parties approached High Court
Gujarat High Court
The High Court allowed husband’s writ petition and dismissed the appellant-wife’s writ petition on the ground that the amendment could not be allowed at this belated stage. However, the High Court in the impugned judgment and order observed that the appellant can file a separate suit seeking for a declaration that the second marriage of the respondent-husband is void.
The wife then moved Supreme Court.
Arguments by Husband in Supreme Court
The present appeals are vehemently opposed by Senior Advocate appearing on behalf of the respondent-husband.He challenged the declaration that sought marriage between the respondent husband and Ms X is null and void is concerned and stated it is submitted that such prayer which is in the nature of counter claim cannot be granted.
It was submitted that the wife had knowledge about the factum of alleged husband’s second marriage with Ms X since March 2007. It is submitted that the wife in the cross examination recorded had categorically admitted that her lawyer applied for so called marriage certificate on March 2007 and he was supplied copy thereof in the same month. It is submitted that she also categorically admitted that despite having knowledge about the alleged marriage certificate since 2007, she did not mention about the alleged marriage of the respondent-husband with Ms X.
Supreme Court
A bench of Justices M.R.Shah and A.S.Bopanna made the observation held that if some facts have come to the knowledge subsequent to the commencement of trial an application for amendment of written statement can be allowed even after the trial has commenced.
The question regarding the amendment of pleas and the nature of reliefs that can be pleaded arose in a divorce suit between the appellant-wife and respondent-husband. The respondent-husband filed a petition seeking dissolution of marriage.
The appellant-wife sought amendments to her written statements seeking, inter alia
(i) that respondent-husband is living in adultery
(ii) that a subsequent marriage between respondent-husband and third party be declared void and that child born of that wedlock be declared an illegitimate child
Explaining Order VI Rule 17 CPC which permits amendment of written pleadings, the Bench explained 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 matters before the commencement of the trial.
In the present case, the Bench noticed that the appellant-wife came to know about the subsequent marriage between respondent and third party only during cross-examination of the respondent. Therefore, the restrictions as per proviso to Order VI Rule 17 CPC shall not be applicable. The Bench holds:
If some facts have come to the knowledge subsequently and subsequent to the commencement of trial and if it is found necessary for the purpose of determining the real questions in controversy between the parties such an application for amendment can be allowed even after trial has commenced.
With respect to the permissibility of counter-claim under Order VIII Rule 6A of the CPC, the Bench observes that the core question which requires consideration is whether the appellant-wife could have claimed the relief sought qua para 37 by way of counter-claim in a marriage petition filed by the respondent-husband for dissolution of the marriage?
Answering the question in negative, the Bench holds that as per Section 23A of the Hindu Marriage Act, by way of counter-claim the appellant-wife can pray for reliefs only those which can be prayed or granted under HMA namely,
- Restitution of Conjugal Rights (Section 9)
- Judicial Separation (Section 10)
- Declaration of marriage between petitioner and respondent void (Section 12)
- Divorce (Section 13)
Crucially, the Bench holds that no relief can be prayed qua third party.
The Bench further observed that the only remedy available to the appellant would be to file a substantive suit and/or initiate independent proceedings claiming such reliefs. The Court set aside the impugned judgement and order passed by the High Court and restored the Family Court order partially permitting the appellant-wife to amend her written statement.
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