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mrgop (Owner)     02 March 2013

Counter claim after closing evidence and starting trial

Just after one month separation, wife filed for divorce on ground of mental cruelty etc. I had denied all her allegations in my counter but had not made any counter claims. I had also filed RCR. Since then 3 yrs passed and now the evidence stage closed for starting trial. 

Now, I want to withdraw my RCR, and also file counter claim on her divorce petition stating desertion and mental cruelty as more than 2yrs passed since she filed divorce petition. is it possible? if yes, should I file application for amending my existing counter? can she oppose such amendment and what are my chances of getting it allowed? 



Learning

 4 Replies

Tajobsindia (Senior Partner )     03 March 2013

1. It will be allowed is my view.

2. Hon'ble Apex Court in the case of ref.: Chetan Dass Vs. Kamla Devi [2001 4 SCC 250] approved of such amendment as is reflected from paragraph 2 of the ref. judgment wherein application under O 6 / R 17 C.P.C. was allowed.

However what I feel is that you need a excellent pleader to push your envelop in right direction to get the amendment allowed.

ATB


mrgop (Owner)     03 March 2013

Sir, thank you!

Can she withdraw her divorce petition if I file the counter claim? As far as I know from this forum, she can not withdraw divorce petition once my counter claim application is allowed. But I want to know whether she can withdraw her divorce petition when my counter claim petition is pending.

 

 

 

 

 

Tajobsindia (Senior Partner )     03 March 2013

"The opinion of the forum is bald so far as settled Law goes"

Explanation: My replies here and there finds loyalty towards platform (LCI) and not follows Shepherd's Trail hence if you read them carefully and apply in case in hand you will stop searching here and there in confused state and ask addendum question(s) with minor twist to a original poser.

Having opinioned so, she is jolly well in her rights to withdraw instituted main petition while counter claim adjudication is pending and a Ld. Judge is within his rights to pass Order on such withdrawal as not pressed however while passing such Order he has to adjudicate your “counter claim” Application too and if he fails to do so then available recourse (Appeal) is under S. 28 HMA before Hon’ble HC of the State which is scheme of Court's best practices that happens under Family Laws of the land as per binding Law of Apex Court. 


Now I leave this reply; believe the forum's reply or mine which is based on already settled Law.

1 Like

Nadeem Qureshi (Advocate/ nadeemqureshi1@gmail.com)     03 March 2013

i agree with expert


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