As per para 37, the appellant-original defendant has proposed therelief to declare that the marriage between the respondent-originalplaintiff with Hinaben Manubhai Panchal on 14.12.2006 is illegal, voidand voidable and further to declare that Hinaben Manubhai Panchal isnot a legal wife of the respondent original plaintiff and also to declarethat the original plaintiff respondent herein is living with HinabenManubhai Panchal in adultery.It is also further prayed to declare that theson Dev born through the respondent and Hinaben Manubhai Panchalis not a legitimate child of the respondent-original plaintiff.On a fair reading of Section 23A of the Hindu Marriage Act, we areafraid that the relief sought by way of counter claim in the Hindu MarriagePetition filed by the respondent can be claimed. Section 23A of theHindu Marriage Act reads as under:

23A. Relief for respondent in divorce and other proceedings In anyproceeding for divorce or judicial separation or restitution of conjugalrights, the respondent may not only oppose the relief sought on the groundof petitioners adultery, cruelty or desertion, but also make a counter-claimfor any relief under this Act on that ground; and if the petitioners adultery,cruelty or desertion is proved, the court may give to the respondent anyrelief under this Act to which he or she would have been entitled if he orshe had presented a petition seeking such relief on that ground.

On a fair reading of Section 23A of the Hindu Marriage Act, the

respondent in any proceedings for divorce or judicial separation or

restitution of conjugal rights, may not only oppose the relief sought onthe ground of adultery, cruelty or desertion, but also make a counterclaimfor any relief under Hindu Marriage Act, i.e, on the ground ofpetitioners adultery, cruelty or desertion and if the petitioners adultery,cruelty or desertion is proved, the court may give to the respondent anyrelief under Hindu Marriage Act to which he or she would have beenentitled if he or she had presented a petition seeking such relief on thatground, i.e., seeking a divorce or judicial separation on the ground ofpetitioners adultery or cruelty. Therefore, by way of counter claim, therespondent in any proceedings for divorce or judicial separation orrestitution of conjugal rights can pray for the relief by way of counterclaim only those reliefs which can be prayed and/or granted under theHindu Marriage Act, namely, the relief under Section 9 (Restitution of

conjugal rights); Section 10(judicial separation); Sections 11

12(declaration of marriage between the petitioner and the respondent

void) and Section 13 (divorce).Therefore, the respondent to the

aforesaid proceedings can pray for the aforesaid reliefs only by way ofcounter claim and that too between the petitioner and the respondent.No relief can be prayed qua the third party. Under the provisions of theHindu Marriage Act, the relief of divorce, judicial separation etc. can bebetween the husband and the wife only and cannot extend to the thirdparty. Therefore, by virtue of Section 23A of the Hindu Marriage Act, it isnot open for the appellant herein original defendant to seek declarationto the effect that the marriage between the respondent original plaintiffand the third party Hinaben Manubhai Panchal is void. No relief canbe prayed by way of counter claim even against Dev, the son born outof the alleged wedlock between the respondent original plaintiff and thethird party Hinaben Manubhai Panchal. In such a situation, the onlyremedy available to the appellant would be to file a substantive suitand/or initiate independent proceedings claiming such reliefs. But suchreliefs cannot be claimed by way of counter claim under Section 23A ofthe Hindu Marriage Act in the petition for divorce filed by the respondentherein against the appellant. At the most, the appellant herein originaldefendant by way of counter claim could have claimed the relief andprayed for divorce and/or judicial separation on the ground of husbandsadultery. Beyond that, no relief which cannot be granted under theprovisions of the Hindu Marriage Act can be claimed by way of counterclaim.

{Para 9}

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 5901-5902 OF 2021

Nitaben Dinesh Patel VsDinesh Dahyabhai Patel

Author: M.R. SHAH, J.

Dated:October 07, 2021.