Damayanti (Unemployed) 02 March 2013

Can vexacity/frivolity be made as counterclaim explicitly?

If yes How?

It would solve many probems as to evidence stage as well and also would bind both parties to make them accountable for al their allegations

'Couter claim' causes the WS to be treated with a great value than just as plea in defense.

Hence the query.

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Damayanti (Unemployed) 02 March 2013

set-off under Section 23A of the Hindu Marriage Act is clearly envisaged, as follows

23A. Relief for respondent in divorce and other proceedings.

In any proceeding 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 (this is set off ), but also make a counter- claim for any relief under this Act on that ground (this is counter claim),; 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.]

Set-off makes the plaintiff to give an explicit answer to counter filed by respondent alleging the it is the plaintiff who has taken adv of own wrong s and in fact has committed misconduct.

And those allegations become mandatory to be traversed by plaintiff else they OUGHT TO BE treated as ADMITTED FACTS by the petitioner

Please comment whether above is correct interpretation of law.

Tajobsindia (Senior Partner ) 03 March 2013

If you can 'demonstrate' before a competent Court;

1. that the proceedings are vexatious in the sense of having been taken in the absence of objectively reasonable ground; and

2. that proceedings have been brought habitually or persistently, such that the litigant has continued obstinately in the course of conduct, despite protests or criticism.

Also if you can describe the ‘characteristics’ of reference vexatious proceedings while posing humble relief under counter claim (viz; S. 23 A HMA) ;

1. bringing one or more actions to decide an issue which has already been determined by a court of competent jurisdiction;

2. where it is obvious that an action cannot succeed, or if the action would lead to no possible good, or if no reasonable person can reasonably expect to obtain relief;

3. actions brought for an improper purpose, including the harassment or oppression of other parties by multifarious proceedings brought for purposes other than the assertion of legitimate rights;

4. grounds and issues raised tend to be rolled forward into subsequent actions and repeated and supplemented, often with actions brought against the lawyers who have acted for or against the litigant in earlier proceedings;

5. failure of the person instituting the proceedings to pay the costs of unsuccessful proceedings;

6. persistently taking unsuccessful appeals from judicial decisions; and

7. in determining whether proceedings are vexatious, the court must look at the whole history of the matter and not just whether there was originally a good cause of action."

Then I can comfortable answer your query in affirmative. However way back in 1996 Hon'ble SC has settled the position ‘counter claim in family law related matters as a whole’ in ref. Jag Mohan Chawla and Anr. v. Dera Radha Swami Satsang and Ors. and same is followed in spirit even by Mumbai HC till date in reference to context of your main question – counter claim however posed with a twist, that is you have to cross over two bars; vexacity and frivolity of your husband's numbered main petition even if in future he withdraws his numbered main case of the record your counter claim needs adjudication by an Family Court in Mumbai.

ATB

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