Section 23A of Hindu Marriage Act 1955 - Relief for Respondent
Section 23A gives a respondent in specified matrimonial proceedings the right not only to oppose the petition but also, on the statutory grounds, to seek appropriate relief under the Hindu Marriage Act, 1955 by way of counter-claim.
Section 23A - Statutory provision
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 that ground; and if the petitioner's adultery, cruelty or desertion is proved, the Court may give to the respondent any relief under this Act to which he or she would have been entitled if he or she had presented a petition seeking such relief on that ground.
Meaning and scope of Section 23A
The provision applies to proceedings for divorce, judicial separation or restitution of conjugal rights. A respondent is therefore not confined to merely resisting the petition. Where the petitioner's adultery, cruelty or desertion is relied upon, the respondent may also make a counter-claim for a relief that the Hindu Marriage Act permits on that ground.
The ground relied upon must be pleaded and proved. The Court may then grant the respondent the relief that he or she could have sought by presenting an appropriate matrimonial petition on that ground.
Essential requirements
- A proceeding must be pending for divorce, judicial separation or restitution of conjugal rights.
- The person invoking Section 23A must be the respondent in that proceeding.
- The statutory grounds stated in Section 23A are the petitioner's adultery, cruelty or desertion.
- The respondent may oppose the petition and may also make a counter-claim.
- The counter-claim must seek a relief available under the Hindu Marriage Act.
- The relevant matrimonial ground must be proved before relief can be granted.
What relief can be claimed?
In Nitaben Dinesh Patel v. Dinesh Dahyabhai Patel, Civil Appeal Nos. 5901-5902 of 2021, decided on 7 October 2021, the Supreme Court explained that a counter-claim under Section 23A is confined to relief that can be prayed for or granted under the Hindu Marriage Act. The Court referred to relief under Sections 9, 10, 11 and 12, and 13, as applicable to the parties and the facts.
The Supreme Court also clarified that such matrimonial relief operates between the petitioner and the respondent. Section 23A cannot be used to obtain relief against a third party. A claim requiring relief against a third party may require an appropriate independent proceeding.
Related provisions
Section 9 deals with restitution of conjugal rights and Section 10 with judicial separation. Sections 11 and 12 concern void and voidable marriages. Section 13 provides grounds for divorce, while Section 23 deals with decrees in proceedings under the Act.
Procedure and pleadings
The material facts constituting adultery, cruelty or desertion and the precise matrimonial relief sought should be clearly pleaded. Section 21 of the Hindu Marriage Act applies the Code of Civil Procedure, 1908 to proceedings under the Act, subject to the Act and applicable High Court rules. Procedural questions concerning a counter-claim or amendment of pleadings should therefore be considered with the applicable CPC provisions and court rules.
Official legal resources
The current Central Act text is available on India Code. The Supreme Court judgment in Nitaben Dinesh Patel v. Dinesh Dahyabhai Patel gives authoritative guidance on the scope of a counter-claim under Section 23A.
This article provides general legal information. The remedy and procedure in an individual case depend on the pleadings, evidence, applicable rules and facts.