Even if Plaint is withdrawn the Counterclaim will Remain

Withdrawal of a petition will not abate counter claim

Withdrawal of an Original Petition for divorce, filed by the wife under Section 13(1) (ia) of the Hindu Marriage Act, 1955, does not automatically abate the counterclaim filed by the husband, says the High Court of Allahabad in Ishita Dua v Tarun Kumar Sharma [2024:AHC:79757-DB].

The plaintiff has absolute right to withdraw any suit or abandon any part of the claim, as per Order XXIII Rule (1) CPC, but it does not affect the continuance of the counter claim.

Plaint is allowed withdrawal but the counter claim survives

If the plaintiff is allowed to withdraw his suit, the suit stands as ‘discontinued or dismissed’ and the counter claim set up by the respondent may be proceeded with, under Order VIII Rule 6D CPC.

The counterclaim, as per law, is to be treated as a plaint by itself and are governed by the rules of a plaint.

If the defendant relies upon several distinct grounds of defence or set-off or counterclaim founded upon separate and distinct facts, they shall be stated, as far as may be separately and distinctly, under Order VIII Rule 7 of CPC.

Facts of this case in brief

A divorce petition was filed by the appellant-wife under Section 13(1)(ia) of the Hindu Marriage Act, 1955 and the respondent-husband filed a counterclaim seeking custody of the girl child.

After framing of the issues, wife filed a withdrawal application under Order XXIII Rule (1)(3) CPC read with Section 151 CPC. Respondent-husband stated that as long the counterclaim was heard separately, he did not have any objection to the withdrawal of the original petition.

After allowing the withdrawal of original petition, issues were framed in the counterclaim. Since no objection regarding its maintainability were raised, the court held that the counterclaim will proceed on its own merits.

Appellant argued withdrawal of plaint will end up the counter

The wife argued that once the withdrawal was not objected to by the husband, his counterclaim is not maintainable, and once the principal suit is withdrawn, the counterclaim will not survive, as the Order VIII Rule 6-D CPC only provides for survival of counterclaim when the principal suit is stayed, discontinued, or dismissed.

However, withdrawal of the principal suit does not allow the counterclaim to stand.

The High Court’s says the counter claim survives

The High Court says that Order VIII Rule 6A (4) of CPC provides that counterclaim is to be treated a separate cause of action and the counterclaim is to be treated as a plaint by itself.

The court held that the plaintiff can at any time, prior to framing of issues, ask for exclusion of counterclaim from the claim of the plaintiff under Order VIII Rule 6C of CPC. However, no such request was made by the appellant before the Court below.

The High Court held that withdrawal of a suit will fall under Order VIII Rule 6D of CPC as suits are “dismissed as withdrawn” as the Black’s Law Dictionary defines ‘discontinuance’ as ‘the termination of a lawsuit by the plaintiff; a voluntary dismissal’.

Now, in the present case, the wife had put an end to the original petition herself and the respondent-husband had only given a conditional acceptance to the withdrawal of the suit on the condition that the counterclaim should be allowed to proceed on its own merits.

Counter claims are to be treated as suits

Referring to the Order VIII Rule 6A to 6G of the CPC, the High Court held that the counterclaim is to be treated as an independent suit.

The court relied on a decision in Hulas Rai Baijnath v K.B. Bass & Co. Ltd [AIR 1968 SC 111], where it was held that the counterclaim is maintainable even if the suit is withdrawn.

The High Court concluded that despite withdrawal of the divorce petition by the wife, the counterclaim of the husband will survive.


  1. Ishita Dua v Tarun Kumar Sharma [2024: AHC:79757-DB]
  2. Hulas Rai Baijnath v K.B. Bass & Co. Ltd [AIR 1968 SC 111]