Summary
The Court permitted a wife to amend her defence in the husband’s divorce petition to plead his subsequently disclosed second marriage. On the accepted facts, she learned of the marriage during cross-examination and promptly sought amendment, satisfying the exception to the post-trial amendment restriction. It nevertheless refused her proposed counterclaim for declarations concerning the husband’s marriage to another woman and the status of their child: Section 23A permits matrimonial relief under the Hindu Marriage Act between the spouses, not those third-party declarations. Independent remedies remained open.
Issues
- Whether the written statement could be amended after commencement of trial to plead the husband’s subsequently disclosed marriage.
- Whether the proposed counterclaim could be rejected merely because the wife had already delivered her defence.
- Whether Section 23A permitted declarations concerning a marriage with a third party and the child of that relationship.
Provisions considered
- Order VI Rule 17 and proviso; Order VIII Rule 6A, Code of Civil Procedure, 1908The post-trial amendment exception applied to the subsequently discovered facts. The Court rejected the High Court’s timing ground concerning the proposed counterclaim on the stated facts, while separately examining whether that relief was legally available. (¶¶ 6, 7, 8)
- Section 23A, Hindu Marriage Act, 1955A respondent may oppose matrimonial relief and counterclaim for relief under the Act on the petitioner’s adultery, cruelty or desertion. This did not permit the proposed declarations concerning a third party’s marriage and child in the pending divorce petition. (¶¶ 9, 10, 11)
Held
- The husband had denied the alleged relationship in his rejoinder, describing the other woman as a hospital manager. The Court accepted that the wife learned of the actual marriage when he admitted it and produced the certificate during cross-examination. Her prompt application could be allowed under the due-diligence exception, as the facts were relevant to the real controversy. (¶¶ 2.1, 6, 7)
- On the wife’s stated case that the counterclaim cause arose upon the disclosure during cross-examination, the High Court should not have rejected it merely because she had already filed her defence. That did not resolve the separate question whether the proposed relief could be granted in this matrimonial proceeding. (¶ 8)
- Section 23A permits counterclaims for relief available under the Hindu Marriage Act between the petitioner and respondent. It did not permit declarations invalidating the husband’s marriage with another woman, declaring her not his lawful wife or determining the status of their child through this counterclaim. The wife could pursue an independent substantive proceeding or other remedy available in law. (¶¶ 9, 10, 11)
- The Family Court’s partial allowance was restored: the factual amendments in proposed paragraphs 35 and 36 were permitted, while the declaratory counterclaim in paragraph 37 remained rejected. The judgment did not adjudicate the merits of the reserved independent claims or finally decide the divorce petition. (¶¶ 11, 12)
Result
Appeals partly allowed. Family Court order restored, permitting the factual amendments but refusing the proposed third-party declaratory counterclaim; independent remedies reserved. No costs.