Shruti Lamba
If a suit is filed against a person (respondent), is he supposed to just defend himself and be devoid from claiming anything out of the suit?
The law systems all over the world aim to deliver equal justice to all. And keeping in mind this very founding principle even the respondent has been given privileges to request something against the claims and petition of the petitioner. One of such privileges is Counter Petition.
What is Petition?
In literal sense, petition means a formal request made to do something, generally made to a government official, organization or an undertaking. In legal sense, petition is a written request formally made before a court (generally) in form of a request. It is a request formally made to seek a specific court order. It is a request made in form of an appeal. It can be filed by an individual as well as by a group of people or by an organization.
What is Counter Petition?
Counter Petition can be understood as a strike back from the respondent. As defined by Collins English Dictionary, counter petition means:
“a formal request for legal action submitted to a court by a respondent who has received a petition.”
In simple words, counter petition can be understood as a formal request, for ordering a legal action, made before the court by a respondent on receiving a petition. It can be better understood with an illustration:
Illustration: Mrs. A files a petition for dissolution of marriage against Mr. B. After receiving the petition Mr. B also files a petition for dissolution of marriage against Mrs. A in the same court. In filing the petition Mr. B is suing his spouse as she already did and this petition is called Counter Petition.
Legal experts also define counter petition as a petition that supports a position counter to the position already supported in another petition.
On filing the counter petition the respondent is then called “Respondent/Counter-Petitioner”
Why Counter Petition needs to be filed?
If generally considering the illustration above one may ask why should Mr. B file the petition which has been already filed by his spouse; to a layman both the petitions mirror each other as both the parties will allege same facts and will request same relief and moreover, the end result of both the petitions will be dissolution of marriage then why to file a counter petition?
A counter petition should be necessarily filed because it gives respondent an opportunity to be heard as to what is his side of the story, it provides room for outlining his own request to the court, which may not be mentioned in the initial petition of petitioner at all.
For instance, in above illustration Mr. B on filling the counter petition he will be able to tell court his side of the story and state his own grounds for dissolution of marriage and subsequently it would help him to get affirmative relief.
Answer to the Petition vs Counter Petition?
An answer to the petition is in no way same as counter petition. On receiving a petition one, generally, has to file a written response to the petition before the court and this called answer to the petition. An answer to the petition is basically a para wise response to each paragraph or statement filed in the petition by the petitioner. The respondent may agree, object, admit or deny to what has been stated or requested by the petitioner.
But filing of the answer to the petition may not be enough to protect the respondent throughout the proceedings, so it is best advised to file answer as well as counter petition; because filing the counter petition will provide respondent with the opportunity to state his own story and facts, make own allegations against the petitioner and also request specific types of relief.
When can a Counter Petition be filed?
Counter petitions can be filed in following civil cases:
Counter Petition for Divorce or Dissolution of Marriage
Counter Petition for Child Custody
Counter Petition for Order of Protection
Counter Petition for divorce or dissolution of marriage
Dissolution of marriage or divorce means legal termination of the marriage. Respondent on receiving the petition for divorce is required to answer the petition but apart from merely answering as to agreeing or denying the statements made in the petition can file a counter petition and outline its own requests and allege own facts and grounds.
Filing the counter petition for divorce one sues his/her spouse in same manner as he/she has been already sued. A petition for dissolution of marriage involves various claims such as alimony, division of marital home, child protection and lot more; filing of a counter petition in a way helps the respondent to get affirmative response to such claims. Rather then just being granted the claim which his/her spouse has been denied by the court one can actually request for independent claim against the spouse by filing counter petition.
Illustration: Mrs. X requests alimony from her husband Mr. Y in initial petition. Mr. Y files an answer to the petition disagreeing to pay the alimony. Not filing counter petition will only provide opportunity to Mr. Y to argue against making alimony payment but it won’t provide him opportunity to request alimony for his own.
Not filing the counter petition does not makes one incapable of making the requests for claiming reliefs for oneself but it makes the process more difficult.
One is usually advised to file counter petition along with the answer to the petition but one can file it later too with the permission of the court.
Under Indian Law, counter petition for a divorce of a Hindu marriage is a relief provided under Section 23A of Hindu Marriage Act,1955. Section 23-A of HMA,1995 states that:
“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 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.”
In the leading case of Misharibai v Parasmal II (1991) DMC 183:
The appellant (Mishribai) filed an application for restitution of conjugal rights and on receiving the notice for the same the respondent- husbandfiled reply and counter claim for divorce alleging grounds of cruelty and desertion.
Counter petition for child custody
A counter petition for child custody is basically a request made to the judge specifying the order that he should make in the custody case.
In the leading case of (Kode) Atchayya vs Kosaraju Narahari, AIR 1929 MAD 81:
The appellant is maternal grandfather of the child and the respondent is biological father of the child. The respondent’s case is that he requested the appellant to send back the child to his custody but the appellant refused to do so without giving any proper reason. The respondent therefore applied to the court under Section 25 of the Guardians and the Wards Act for an order directing the appellant to deliver the child. The appellant filed a counter-petition in which he opposed the application stating his own grounds.
It is to be kept in mind that issues pertaining to child custody are crucial issues and thus the courts are not bound to follow the given set of rules, the decision should be the one that is in best interest of the child. Therefore, even in counter petition of custody of the child is not filed by the respondent still the court will consider all the aspects of the case to determine if its suitable to grant custody to the respondent.
Counter Petition for order of protection
Counter petition for order of protection is usually filed in the cases of domestic violence. Statistics show that there are number of cases where the alleged offender of domestic violence is the actual victim and the petitioner being the actual offender files the petition with the strategic intent of preventing the actual victim to take action. In these cases, the true victim has the benefit of filing the counter petition for order of protection from domestic abuse against the petitioner.
Conclusion
Counter petition is not only an opportunity for the respondent to present his side of the story rather it is somehow cure for the problem of exploitation of respondent due to false case filed by the petitioner. In recent times, we can clearly observe that most of the civil cases filed, especially cases relating to matrimonial matters, are false; and this subsequently drags the respondent into hardships of the legal system. The respondent suffers financially as well as mentally. Counter petition provides an equal chance to the respondent to lay before the court his story and thus defending him against the false accusations.
Keeping in mind, the benefits of filing counter petition it is advised to file a counter petition along with the answer to the petition. And it is to be noted that even if not filed it does not close the doors for the respondent to present his story or requests his own claims and reliefs.
References:
- https://indiankanoon.org/doc/34142/?type=print
- https://indiankanoon.org/doc/508184/
- https://divorcelawyersinchandigarh.com/counter-claim-in-divorce-under-the-hindu-marriage-act-1955/
- https://harrlawfirm.com/news/filing-a-counter-petition-and-answer-to-divorce-petition/