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Ruchi W/O Bhanupratapsingh Gour vs Bhanupratapsingh Gour S/O … on 29 January, 2019

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
NAGPUR BENCH : NAGPUR.

Writ Petition No.5768 of 2016

Ruchi w/o Bhanupratapsingh Gour,
Aged about 32 years, Occ.-Household,
r/o.-C/o.-Arunkumar Kiledar, Sadar Bazar,
Baitul (MP) 460 001. …. Petitioner.

Versus

Bhanupratapsingh Gour s/o Sureshsingh Gour,
Aged about 37 years, Occ.- Business,
R/o.- B/2-B, Corporation Colony,
North Ambazari Road, Nagpur 440 033. …. Respondent.

Mrs. Jyoti Dharmadhikari, Counsel for petitioner.
Mr. Sudhir T. Dhurway, Counsel for respondent.

Coram : Manish Pitale, J.

Dated : 29th January, 2019.

ORLA JUDGMENT

Rule. Rule returnable forthwith by consent of learned Counsel
appearing for the parties.

2. By this Writ Petition, the petitioner has challenged order dated
27-07-2016, passed by the Family Court, Nagpur, whereby an application
(Exhibit-44) filed on behalf of the petitioner for permission to file
counterclaim and for claiming reliefs under the provisions of the Protection
of Women from Domestic Violence Act, 2005 (for short, ‘Act of 2005’), was
rejected.

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3. The petitioner and respondent were married on 20-04-2007 at
Baitul. On 13-05-2014, the respondent (husband) filed a petition for grant
of divorce against the petitioner (wife) before the Family Court. During the
pendency of the said petition, on 27-01-2015, the respondent filed an
application for restraining the petitioner from doing any unlawful act and
from entering the house of the respondent. On 11-01-2016, the respondent
filed reply to the said application and she also filed written statement to the
petition for divorce filed by the respondent. The said application filed on
behalf of the respondent was directed to be decided along with the main
petition for divorce filed by the respondent.

4. According to the petitioner, during the pendency of the said
petition and the application filed by the respondent, on 01-04-2016, she
was illegally prevented from entering the matrimonial house and that gave
rise to cause of action for her to claim Restitution of Conjugal Rights and
to claim certain reliefs under the Act of 2005.

5. Accordingly, on 14-06-2016, the petitioner filed an application
for permission to file counterclaim for restitution of conjugal rights and for
reliefs under the provisions of the Act of 2005, claiming that she had
been thrown out of the matrimonial house from 01-04-2016 onwards. This
application was opposed by the respondent.

6. By the impugned order dated 27-07-2016, the Family Court
has rejected the application filed by the petitioner on the ground that under
Order VIII Rule 6-A of the Code of Civil Procedure, 1908 (CPC), the
petitioner ought to have raised her counterclaim either along with the

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written statement or within the period of limitation prescribed for raising her
defence in response to the petition of divorce filed by the respondent. It
was found by the Family Court that since the written statement was already
filed by the petitioner and the limitation for filing counterclaim under Order
VIII Rule 6-A of the CPC had expired, she could not raise any claim
towards Restitution of Conjugal Rights as sought by her. As regards the
relief sought to be claimed by the petitioner in the pending proceeding, it
was observed by the Family Court that under Section 26 of the Act of
2005, the petitioner could do so. But, since the Family Court found that
the right to raise a counterclaim by the petitioner was barred by limitation,
the entire application was rejected.

7. Mrs. Jyoti Dharmadhikari, learned Counsel appearing for the
petitioner, submitted that the impugned order passed by the Family Court
was unsustainable because, on application of Section 23-A of the Hindu
Marriage Act, 1955 (for short, ‘Act of 1955’) read with Section 21 thereof, it
was evident that the limitation prescribed under Order VIII Rule 6-A of the
CPC for raising counterclaim would not apply in the present proceedings
before the Family Court initiated by the respondent under the provisions of
the Act of 1955. It was submitted that Section 21 of the Act of 1955,
clearly states that subject to other provisions of the Act of 1955, all
proceedings under the said Act would be regulated as far as may be by
the CPC. It was submitted that since Section 23-A of the Act of 1955,
specifically provided for right to raise a counterclaim and no limitation was
prescribed for the same, the Family Court could not have rejected the
application filed on behalf of the petitioner. Reliance was placed on
judgment of the Madhya Pradesh High Court in the case of Sameeran

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Roy vs Smt. Leena Roy, reported at AIR 2001 MP 192.

8. On the other hand Mr. Sudhir Dhurway, learned Counsel
appearing for the respondent, submitted that the Family Court was
justified in rejecting the application of the petitioner because the
counterclaim, if any, ought to have been raised along with written
statement or within the limitation as prescribed under Order VIII Rule 6-A
of the CPC. It was sought to be argued that the reliefs claimed by the
petitioner under the provisions of the Act of 2005, could not have been
entertained by the Family Court and that such reliefs ought to have been
claimed before the Criminal Courts. On this basis, it was submitted that
the Writ Petition deserves to be dismissed.

9. Heard Counsel for the parties and perused the record. The
only question that arises for consideration in this Writ Petition is, as to
whether the Family Court was justified in relying upon Order VIII Rule 6-A
of the CPC, to hold that the petitioner was not entitled to raise a
counterclaim after having filed the written statement and upon expiry of
period of limitation prescribed under Order VIII Rule 6-A of the CPC. The
findings rendered by the Family Court can be upset only if it is found that
the CPC would be applicable to the right of the petitioner to submit a
counterclaim in the proceedings for divorce filed by the respondent before
the Family Court. In this regard the following provisions of the Act of 1955
are relevant:-

“21. Application of Act 5 of 1908.– Subject to the other
provisions contained in this Act and to such rules as
the High Court may make in this behalf, all

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proceedings under this Act shall be regulated, as far
as may be, by the Code of Civil Procedure, 1908.”

“23-A. Relief for respondent in divorce and other
proceedings.–In any proceedings 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 the ground, and if the petitioner’s
adultery, cruelty or desertion is proved the Court may
give to the respondent any relief if he or she had
presented a petition seeking such relief on that
ground.”

10. A perusal of the above quoted Section 23-A of the Act of
1955, that any proceedings for divorce initiated by a party, the respondent
would be entitled to raise a counterclaim and it would have to be treated
as if the respondent had filed a petition seeking such relief. There is no
period of limitation or any other rider mentioned in the said Section 23-A
of the Act of 1955, as provided under Order VIII Rule 6-A of the CPC.
Section 21 of the Act of 1955, quoted above, shows that the CPC would
be applicable to the proceedings initiated under the said Act subject to
other provisions contained therein. A conjoint reading of the aforesaid
Section 21 and Section 23-A of the Act of 1955 shows that the respondent
in a proceeding initiated under the Act of 1955, would have a right to raise
a counterclaim without being subjected to the specific fetters contained
in Order VIII Rule 6-A of the CPC . This is because, to the extent of
applicability of Section 23-A of the Act of 1955, the provisions of Order VIII
Rule 6-A of the CPC, would not be applicable. This clearly shows that the
Family Court erred while passing the impugned order and holding that the

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application for raising counterclaim filed on behalf of the petitioner could
not be entertained.

11. In the judgment in the case of Sameeran Roy vs Smt.
Leena Roy (supra) relied upon by the learned Counsel appearing for the
petitioner, in a similar situation, Madhya Pradesh High Court has held as
follows :-

“8. At this juncture, I may profitably refer to Section 21 of
the Act. It reads as under :

“21. Application of Act 5 of 1908.– Subject to the other
provisions contained in this Act and to such rules as the
High Court may make in this behalf, all proceedings under
this Act shall be regulated, as far as may be, by the Code
of Civil Procedure, 1908.”

The aforesaid provision makes it luminously clear that the
proceeding under the Act shall be regulated as far as may
be the Code of Civil Procedure, 1908. Thus, this section
clearly indicates that to an application under Section 13 of
the Act the Code of Civil Procedure does not automatically
apply. The applicability of Code of Civil Procedure has
been hedged by two conditions, namely, subject to other
provisions of the Act and subject to the Rules framed by
the High Court. That apart, the terms “as far as may be”
have also to be given its due prominence. Thus, it is
apparent that if any provision is in existence under the Act
it would oust the application of the provisions of the Code
of Civil Procedure. In this context, Section 23A of the Act
assumes significance. The provision reads as under :

“23-A. Relief for respondent in divorce and other

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proceedings.–In any proceedings 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 the ground,
and if the petitioner’s adultery, cruelty or desertion is
proved the Court may give to the respondent any relief if
he or she had presented a petition seeking such relief on
that ground.”

On a fair reading of the aforesaid provision it is
graphically clear that a special provision of this nature
provides for counter-claim in respect of a divorce petition.
Thus, provision of Order 8 Rule 6-A of the Code shall not
be applicable, in view of the provisions enshrined under
Section 23A of the Act. ”

12. This Court respectfully agrees with the reasonings given by
the Madhya Pradesh High Court in the aforesaid judgment.

13. Insofar as the question as to whether the petitioner could claim
reliefs under the Act of 2005 before the Family Court by raising a
counterclaim, the learned Counsel appearing for the petitioner is justified in
relying on Section 26 of the Act of 2005, wherein it is made clear that in a
legal proceeding initiated before the Family Court, any relief available
under Sections 18, 19, 20, 21 and 22 of the Act of 2005, can be claimed by
an aggrieved person. Therefore, there is no substance in the contention
raised on behalf of the respondent that the petitioner could have claimed
reliefs under the provisions of the Act of 2005, only before the Criminal
Courts and not before the Family Court where divorce petition is already

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pending.

14. In view of the above, the Writ Petition is allowed. The
impugned order passed by the Family Court is quashed and set aside and
the application filed on behalf of the petitioner is allowed in terms of prayers
made therein.

15. Rule is made absolute in above terms.

JUDGE
Deshmukh

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