ISHITA DUA Vs. TARUN KUMAR SHARMA

JUDGEMENT

(1.) Heard Sri Aditya Bhushan Singhal, learned counsel for the appellant and perused the record.

(2.) The Present appeal has been filed challenging impugned judgement and order dtd. 27/2/2024 passed by the Additional Principal Judge, Family Court, Gautam Budh Nagar in Case No. 883 of 2021 (Ishita vs. Tarun), under Sec. 13 (1)(ia) of the Hindu Marriage Act, 1955 (hereinafter referred to as the 'Act') only to the extent whereby the counter-claim of the respondent-husband has been permitted to proceed on its own as an independent petition.

(3.) The appellant-wife has filed the divorce petition under Sec. 13(1)(ia) of the Act. A counter-claim under Sec. 23 (a) of the Act has been filed the respondent-husband for custody of a girl child born out of the wedlock. Issues were framed in the suit and thereafter one withdrawal application filed by the appellant-wife under Order XXIII Rule (1)(3) of Civil Procedure Code, 1908 (hereinafter referred to as the 'C.P.C.') read with Sec. 151 C.P.C. Withdrawal of the suit was not opposed by stating that the respondent-husband has no objection to the withdrawal application as long as his counter-claim is proceeded with by the Court. In reply, it has been stated by the appellant-wife that the counter-claim by itself is not maintainable. Withdrawal application was allowed by the impugned order dtd. 27/2/2024, however, it was found that the respondent-husband has filed counter-claim on 15/7/2022 and no objection was raised regarding maintainability or admissibility of the counter-claim by the appellant-wife at that stage and thereafter, issues were framed on the basis of the said counter-claim filed by the respondent-husband and even upto that stage no objection was raised by the appellant-wife. The Court below held that maintainability of counter-claim cannot be considered while deciding the withdrawal application. Accordingly, the withdrawal application filed by the appellant-wife was allowed and divorce petition was dismissed as withdrawn, however, it was provided that the counter-claim filed by the respondent-husband shall proceed on its own as an independent petition and date was fixed for evidence with respect to the counter-claim.