Dismissed

Sandeep Chaudhary v. Priyanka

Himachal Pradesh HC5 Dec 2024FAO(FC)/64/2024

Case brief

AI extract

What is this about?

The High Court of Himachal Pradesh dismissed an appeal against the dismissal of a divorce petition following an unconditional withdrawal by the respondent. The court held that a prayer in a reply does not constitute a counter-claim under Section 23-A of the Hindu Marriage Act and no costs were awarded as the appellant failed to claim them at the time of withdrawal.

What did the court decide?

Composite relief seeking dissolution of marriage based on the appellant's prayer in the reply was denied; appeal dismissed with pending applications dismissed as well.

Sandeep Chaudhary Vs Priyanka — Matrimonial and Divorce | Himachal Pradesh HC (2024)

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2024:HHC:14462

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

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FAO (FC) No. 64 of 2024 Date of Decision: 05.12.2024

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Sandeep Chaudhary Versus Ms. Priyanka

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...Appellant.

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...Respondent.

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Coram Hon’ble Mr Justice Vivek Singh Thakur, Judge. Hon’ble Mr Justice Rakesh Kainthla , Judge. Whether approved for reporting?¹ Yes For the appellant : Mr. Dila Ram, Special Power of Attorney of the appellant. For the Respondent : -

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Vivek Singh Thakur, Judge (Oral)

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On 16.09.2023, the matter was listed for the first time. At that time, appellant was present in person. On the next date, i.e. on 18.09.2024, Dila Ram (father of the appellant), claiming him to be Special Power of Attorney of the appellant, was present in person on behalf of the appellant-Sandeep Chaudhary.

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On 19.11.2024, Mr. Hemant Thakur, Advocate had appeared for the appellant, who was also representing the appellant in Criminal

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Revision Petition No. 108 of 2023 decided on 13.10.2023.

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1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.

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Today, Dila Ram, father of the appellant, is present in person. He submits that Mr. Hemant Thakur, Advocate could not be traced and contacted since last couple of days. For his request, appeal is being decided after considering his submissions on behalf of the appellant.

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There was delay in filing appeal. Though we have not found any merit in the application for condonation of delay, but we and have entertained the appeal after condonation of delay in the interest of justice.

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This appeal has been filed on the ground that respondent should not have been permitted to withdraw her petition preferred by her for dissolution of marriage by way of a decree of divorce, as the appellant had also sought the relief for passing a decree of divorce but not on the grounds pleaded by respondent but for grounds as pleaded by the appellant in the reply to the petition preferred by the respondent.

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It has been pleaded that the appellant has been deprived of the benefit of Section 23-A of the Hindu Marriage Act as his prayer, made in the reply for granting the decree of divorce for dissolution of marriage on the grounds taken by the appellant but opposing the relief as sought by the respondent in the petition before Family Court, has not been considered, whereas the appellant was entitled for

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3 2024:HHC:14462

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consideration of his prayer, for dissolution of marriage on the grounds taken by the appellant but as per pleading in his reply.

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It has also been pleaded on behalf of the appellant that at the time of withdrawal of the petition preferred by the respondent, cost should have been awarded in favour of the appellant for mental pain, agony and harassment etc. caused to the appellant for dragging him in unnecessary litigation.

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In the prayer clause of the appeal, though it has been prayed that exemplary penalty in terms of money be imposed upon the respondent but there is no prayer seeking modification of order dated 20.06.2024 for imposition of cost for withdrawing the petition preferred by the respondent nor any such averment has been made in the appeal indicating that appellant was or is aggrieved on account of not imposing any cost at the time of withdrawing the petition on 20.06.2024. No such plea appears to have been taken at the time of withdrawal of petition before Family Court.

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The main prayer of the appellant is that the relief sought by the appellant, in the reply to the petition preferred by the respondent, be accepted and his marriage be dissolved by passing a decree of dissolution of marriage as per provision of Section 23-A of Hindu Marriage Act, 1955.

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Provisions of order 23 Rule 1(1) and (4) of CPC, relevant to be considered and referred in present matter, are as under:-

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“ORDER XXIII WITHDRAWAL AND ADJUSTMENT OF SUITS

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1. Withdrawal of suit or abandonment of part of claim.-(1) At any time after, the institution of a suit, the plaintiff may as against all or any of the defendants abandon his suit or abandon a part of his claim:

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(2)

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(3) ………………… ……………….

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(4) Where the plaintiff-

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(a) abandons any suit or part of claim under sub-rule (1 or

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(b) ………………… ………………. (5). ………………… ……………….”

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No doubt on 20.06.2024, respondent had withdrawn the petition unconditionally but at the time of withdrawal, learned counsel for the appellant as well as appellant had not prayed for any cost for allowing such prayer of withdrawal. For that reason only Family Court has not considered it appropriate to award costs. Such prayer was to be made at the time of request by opposite party to withdraw the petition.

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For the material placed before us, reference of provisions of Order 23 CPC, as made by Dila Ram on behalf of appellant is of no help to the appellant in this matter.

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Moreover, in the present appeal also, it is not the grievance of the appellant that cost has not been imposed upon the respondent at the time of withdrawal of the petition.

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As discussed supra, his prayer of appellant is that his prayer for dissolution of marriage, in terms of reply filed by him to the petition, should have been allowed by invoking provisions of Section 23-A of the Act.

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15 Section 23-A of the Act provides that in reply to the petition, respondent may not only oppose the relief sought in the main petition but is also entitled to make a counter claim for any relief under the Act on the grounds of adultery, cruelty or desertion as permissible under Section 23-A of the Act.

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Neither in the pleadings nor otherwise, it has been claimed by the appellant that he had preferred any counter claim at the time of filing of reply to the petition preferred by the respondent before Family Court. The material placed before us, including the order-sheets of the Family Court, also does not indicate filing of any counter claim by appellant seeking relief for the dissolution of marriage for which, the appellant is agitating in the present appeal.

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It is more than settled that reply to the petition/written statement to the plaint cannot be treated as a counter claim. Counter claim is to be made by the party separately in addition to the written statement or the reply as provided under Order 8 Rule 6-A of Code of Civil Procedure. Otherwise also, language of Section 23-A of the Act is clear that apart from the reply, respondent, in pleadings under Hindu Marriage Act, is also entitled to make a counter claim for any relief

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under the Act on the grounds referred in this section. It does not say that relief can be granted to the respondent on the basis of reply that too when the petition preferred by the opposite party is withdrawn unconditionally.

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Needless to say, appellant, if desires and advised so, is at liberty to avail appropriate remedy under relevant provisions of law for redressal of grievances including dissolution of his marriage by approaching appropriate Forum/Court as permissible under the law.

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The petition is dismissed in aforesaid terms, alongwith pending applications.

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(Vivek Singh Thakur) Judge

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(Rakesh Kainthla) Judge

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5^th December, 2024 (ravinder)

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7 2024:HHC:14462

Sandeep Chaudhary v. Priyanka

Case brief

What is this about?

What did the court decide?

Sandeep Chaudhary v. Priyanka

Case brief

What is this about?

What did the court decide?

What the court decided

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