[Hindu Marriage Act] Withdrawal Of Divorce Petition By Wife Does Not Abate Counterclaim Filed By Husband: Allahabad High Court

The Allahabad High Court has held that withdrawal of divorce petition filed by the wife under Section 13(1)(ia) of the Hindu Marriage Act, 1955 does not automatically abate the counterclaim filed by the husband as dismissal or discontinuance of a suit under Order VIII Rule 6D CPC includes withdrawal of suit as a suit is “dismissed as withdrawn”.

The bench comprising of Justice Vivek Kumar Birla and Justice Syed Qamar Hasan Rizvi held

“Insofar as the term 'discontinued or dismissed' is concerned. Once the withdrawal application is allowed, the suit stands discontinued for all practical purposes. Even otherwise, the withdrawal of the suit is always as dismissed as withdrawn and therefore, withdrawal of the suit would fall within the two words, i.e., 'discontinued or dismissed'.”

Relevant Law

Order XXIII Rule (1) CPC provides that plaintiff can at anytime file for withdrawal of suit or abandonment of part of claim. Order VIII Rule 6-A to 6-G of CPC provide for counterclaim filed by defendant. It provides that counterclaim is to be treated as a plaint by itself and are governed by the rules of plaint. Rule 6-D provides that if in any case in which the defendant sets up a counterclaim, the suit of the plaintiff is stayed, discontinued or dismissed, the counterclaim may nevertheless be proceeded with.

Order VIII Rule 7 provides that where the defendant relies upon several distinct grounds of defence or set-off or counterclaim founded upon separate and distinct facts, they shall be stated, as far as may be separately and distinctly.

Factual Background

A divorce petition was filed by the appellant-wife under Section 13(1)(ia) of the Hindu Marriage Act, 1955 and the respondent-husband filed a counterclaim seeking custody of the girl child. After framing of the issues, wife filed a withdrawal application under Order XXIII Rule (1)(3) CPC read with Section 151 CPC. Respondent-husband stated that as long the counterclaim was heard separately, he did not have any objection to the withdrawal.

After the withdrawal application was allowed, issues were framed in the counterclaim since no objection regarding its maintainability were raised. The Court held that the counterclaim will proceed on its own merits since no objection to its maintainability were raised till the framing of issues.

Counsel for appellant submitted that once the withdrawal was not objected to by the husband, his counterclaim is not maintainable and once the principal suit is withdrawn, the counterclaim will not survive. It was argued that Order VIII Rule 6-D CPC only provides for survival of counterclaim when the principal suit is stayed, discontinued or dismissed, however, withdrawal of the principal suit does not allow the counterclaim to stand.

High Court Verdict

The Court held that Rule 6A(4) provided that counterclaim is to be treated a separate cause of action and the counterclaim is to be treated as a plaint by itself. The Court held that Rule 6C provides that the plaintiff can at any time, prior to framing of issues, ask for exclusion of counterclaim from the claim of the plaintiff. However, no such request was made by the appellant before the Court below.

The Court held that withdrawal of a suit will fall under Rule 6D as suits are “dismissed as withdrawn.” The Court relied on Black's Law Dictionary where 'discontinuance' is defined as 'the termination of a lawsuit by the plaintiff; a voluntary dismissal'.

“In Legal Glossary published by the Government of India, the word 'Discontinue' means 'to cause to cease; or to put a stop to'. Now, in the present case, it is the plaintiff who had caused the suit proceedings to cease and thus, undisputedly has put a stop to the same. Therefore, it clearly the withdrawal of the suit is included in the term 'Discontinuance' or 'Dismissed',” held the Court.

The Court held that the respondent-husband had only given a conditional acceptance to the withdrawal application, i.e., withdrawal of the suit was agreed upon only if the counterclaim was allowed to proceed on its own merits.

Looking at the scheme of Rule 6A to 6G, the Court held that counterclaims are to be treated as suits and proceedings of the two are same. The Court relied on a coordinate bench decision in Hulas Rai Baijnath v. K.B. Bass and Co. Ltd., where it was held that the counterclaim is maintainable even if the suit is withdrawn.

The Court held that despite withdrawal of the divorce petition by the wife, the counterclaim of the husband will survive. Accordingly, the appeal filed by the wife was dismissed.

Case Title: Ishita Dua v. Tarun Kumar Sharma [FIRST APPEAL No. - 374 of 2024]

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