NITABEN DINESH PATEL versus DINESH DAHYABHAI PATEL

NITABEN DINESH PATEL versus DINESH DAHYABHAI PATEL

Amendment of the written statement to add factual paragraphs (paras 35 and 36) was properly allowed because the material fact (respondent's second marriage) came to appellant's knowledge during cross-examination and therefore the proviso to Order VI r.17 CPC did not bar the amendment; however the proposed prayer as a counter-claim (para 37) seeking declaration that respondent's second marriage is illegal/void and challenging legitimacy of the third party's child is not maintainable under Section 23A HMA because counter-claims in matrimonial proceedings are limited to reliefs available under the Hindu Marriage Act between petitioner and respondent only, and cannot extend to third parties,...

Parties
Appellant: Nitaben Dinesh Patel; Respondent: Dinesh Dahyabhai Patel
Jurisdiction
India
Judgment Date
07 October 2021
Procedural Posture
Civil Appeal / Appeal From High Court Judgment and Order Dated 27.09.2019
Outcome
appeal partly allowed
Legal Topics
Amendment of Pleadings, Counter Claim, Hindu Marriage Act S.23 a, Order VI Rule 17 CPC, Order VIII Rule 6 a CPC, Divorce, Judicial Separation
Family Law Civil Procedure Marriage Law Amendment of Pleadings Counter Claim Hindu Marriage Act S.23 a Order VI Rule 17 CPC Order VIII Rule 6 a CPC +2 more

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Parties

Nitaben Dinesh Patel

Appellant

Dinesh Dahyabhai Patel

Respondent

Procedural Posture

Civil Appeal / Appeal From High Court Judgment and Order Dated 27.09.2019

Legal Issues

  1. 1 Whether amendment of written statement under Order VI Rule 17 CPC can be allowed after trial commenced where material fact was discovered during trial
  2. 2 Whether a defendant in divorce/judicial separation/restitution proceedings can, by way of counter-claim under Section 23A HMA, seek reliefs against a third party or seek declaration that third-party marriage is void
  3. 3 Whether a counter-claim under Order VIII Rule 6A CPC is maintainable when the cause of action accrues after filing of written statement

Ratio Decidendi

Amendment of the written statement to add factual paragraphs (paras 35 and 36) was properly allowed because the material fact (respondent's second marriage) came to appellant's knowledge during cross-examination and therefore the proviso to Order VI r.17 CPC did not bar the amendment; however the proposed prayer as a counter-claim (para 37) seeking declaration that respondent's second marriage is illegal/void and challenging legitimacy of the third party's child is not maintainable under Section 23A HMA because counter-claims in matrimonial proceedings are limited to reliefs available under the Hindu Marriage Act between petitioner and respondent only, and cannot extend to third parties,...

Court Disposition

appeal partly allowed

Orders

  • Impugned High Court judgment and order dated 27.09.2019 quashed and set aside
  • Order of Family Court dated 08.05.2018 restored to the extent it permitted amendment of the written statement as per paras 35 and 36