Belated Counter-Claim Not Maintainable: Mere Wish to Reunite Cannot Override Due Process After a Decade of Litigation:  Allahabad High Court Quashes Amendment Order in Divorce Suit

“Order VIII Rule 6A CPC Cannot Be Invoked After Trial Concludes; Counter-Claim Must Precede Filing of Defence” – Allahabad High Court, Lucknow Bench delivered a significant judgment addressing the misuse of procedural provisions to delay matrimonial litigation. The Division Bench of Justice Brij Raj Singh and Justice Vivek Chaudhary set aside the Family Court’s order that had permitted the husband to amend his written statement and raise a counter-claim for restitution of conjugal rights, nearly ten years after the divorce case began. The Court firmly held that the application was not only legally impermissible under Order VI Rule 17 and Order VIII Rule 6A CPC, but was also filed “just to defeat the purpose of the litigation” and to “harass his deserted wife, who is running from pillar to post for the last 10 years.”

The appellant-wife, Meenu Rajvanshi, married the respondent Brijesh on 1 May 2011. She alleged that soon after the marriage, she was subjected to dowry demands and cruelty, eventually leading her to leave the matrimonial home on 31 December 2012. An FIR was lodged on 18 April 2013 under Sections 498-A, 504, 506 IPC and Section 3/4 of the Dowry Prohibition Act.

In view of prolonged separation and cruelty, the appellant filed Original Case No. 2977 of 2014 on 5 November 2014, under Section 13 of the Hindu Marriage Act, seeking divorce. Throughout the litigation, the respondent employed multiple procedural devices to obstruct progress. The Court recorded that he had filed “various types of applications” including several for summoning witnesses, all of which were rejected by the Family Court on different dates — 29 August 2023, 16 May 2024, 23 August 2024, and 4 December 2024.

Despite repeated judicial efforts to move the matter forward, including a direction by the High Court on 21 September 2024 to conclude the trial within four months, the respondent filed an amendment application on 19 December 2024 under Order VI Rule 17 CPC to introduce a counter-claim seeking restitution of conjugal rights.

The central legal issue was whether a counter-claim for restitution of conjugal rights could be introduced by way of amendment at the final stage of trial, after ten years of proceedings and after evidence had been concluded.

The Court held emphatically that the respondent failed to meet the mandatory requirement of “due diligence” under the proviso to Order VI Rule 17 CPC. The Bench observed, “The respondent was silent over the matter for the last 10 years and when the proceedings were at final stage, he moved the amendment application, which is against the spirit of the provisions of Order VI Rule 17 of C.P.C.”

Rejecting the Family Court’s reasoning, the High Court stated, “While allowing the amendment application of the respondent, the Family Court has not applied its judicial mind and has also overlooked the provisions of Order VI Rule 17 C.P.C., as the said amendment application was filed after ten years from the date of institution of the suit.”

On the applicability of Order VIII Rule 6A CPC, which governs counter-claims, the Court was equally categorical. “On bare reading of the provisions of Rule 6A it is clear that counter-claim can be filed against the plaintiff... but before the defendant has delivered his defence or before the time limited for delivering his defence has expired.”

The Court concluded that once evidence had been closed on 4 December 2024, the respondent’s counter-claim filed thereafter on 19 December 2024 was procedurally barred and entirely impermissible. It observed, “In the present case, after passing the order for closing the evidence... the application for amendment moved by the respondent is not sustainable.”

The Court expressed serious concern about the manner in which procedural law was being manipulated to obstruct justice. It noted, “Respondent is trying to delay the divorce proceedings which are pending for more than ten years.” Referring to its earlier order dated 21 September 2024 in Writ Petition No. 4516 of 2024, the Court recalled that it had already observed that “final disposal of proceedings is delayed due to non-cooperative attitude of defendant who keeps on filing same nature of Application(s) time and again despite its continuous rejection.”

Describing the amendment as a mala fide exercise, the Court said, “...this Court had already given a direction to the Family Court to decide the case within four months and even no modification application was moved in this regard. Therefore, the impugned order cannot be sustainable and the same is liable to be set aside.”

The Court relied on the Supreme Court’s ruling in J. Samuel v. Gattu Mahesh, (2012) 2 SCC 300, where it was held that “Due diligence is the idea that reasonable investigation is necessary before certain kinds of relief are requested... The term ‘due diligence’ is specifically used in the Code so as to provide a test for determining whether to exercise the discretion in situations of requested amendment after the commencement of trial.”

The Court also relied on M. Revanna v. Anjanamma, (2019) 4 SCC 332, where the Supreme Court observed, “An amendment cannot be claimed as a matter of right... The Court needs to take into consideration whether the application for amendment is bona fide or mala fide and whether the amendment causes such prejudice to the other side which cannot be compensated.”

Distinguishing the judgment in Nitaben Dinesh Patel v. Dinesh Dahyabhai Patel, the Court clarified, “In the present case the suit was filed in the year 2014 and the amendment application has been filed after 10 years by the respondent... prayer for restitution of conjugal rights could have been made at the time of institution of the suit but he did not choose to file his claim which was within his knowledge.”

The Court allowed the appeal, quashed the Family Court’s amendment order dated 20 February 2025, and directed that “the Family Court concerned is directed to proceed with the case on day-to-day basis and decide the same within two months from today without granting any unnecessary adjournments including ground of strike of lawyers.”

The judgment is a clear reiteration of the principle that courts must prevent abuse of process and discourage procedural tactics intended solely to prolong litigation, especially in sensitive matters like matrimonial disputes.

As the Court firmly declared, “A party cannot sleep over his rights for a decade and wake up to seek restitution.”

Date of Decision: 22 May 2025