ORDER : – With consent of learned counsel for the parties, heard finally. 2. By the instant petition filed under Article 227 of the Constitution of India, the petitioner / wife is challenging the legality, validity and propriety of the impugned order dated 3-8-2018 (Annexure-P/1) passed in C.S. No. 220-A of 2015 by learned 1st Additional Principal Judge, Family Court, Jabalpur, rejecting the counter-claim as not maintainable filed by the petitioner / wife under section 23-A of the Hindu Marriage Act for declaration of second marriage of the respondent / husband as illegal and void. 3. The facts lying in the narrow compass are that the parties are Hindus by faith. They got married to each other on 20-5-2007 and out of their wedlock, one baby child begotten. On 20-2-2015 the respondent - husband has filed a civil suit under section 13(1)(ia) of the Hindu Marriage Act for dissolution of marriage on the ground of cruelty and also on the ground that the petitioner-wife has been convicted under sections 302 and 203 of the IPC for committing murder of her own child aged about 6 months and has been sentenced to undergo imprisonment for life vide judgment dated 28-9-2016 in S.T. No. 753/14 by this Court. The petitioner/wife has already filed written statement on 8-5-2015 denying the allegations made by the respondent/husband. During the pendency of the instant suit, the husband is said to have entered into another wedlock with a girl namely Jaya in the month of January, 2017 and he is said to have now procreated a respectable sized family and immediately thereafter when this fact came into knowledge of the wife and her parents, the petitioner/wife through her father filed a counter-claim under section 23-A of the Hindu Marriage Act for declaring the second marriage of her husband as illegal and void ab initio under section 11 of the Hindu Marriage Act. However, the learned Family Court by the impugned order has rejected the counter-claim of the petitioner-wife as not maintainable holding that the petitioner-wife is a third party and under section 11 of the HMA, the counter-claim is not maintainable because only either party to the marriage can seek relief to declare marriage null and void. However, a liberty is afforded to the wife to file civil suit separately to declare marriage as null and void. 4. However, a liberty is afforded to the wife to file civil suit separately to declare marriage as null and void. 4. Learned counsel for the petitioner/wife submits that during the pendency of the divorce petition, the respondent - husband performed bigamous with a girl namely Jaya in the year 2017, whereas the petitioner/wife is in jail. The petitioner - wife as soon as came to know about such fact, she filed a counter-claim under Order 8, Rule 6A of the C.P.C. on 12-7-2017 before the trial Court for declaration of the second marriage of her husband as illegal and null and void. The said counter-claim was found not maintainable by the trial Court and the same was rejected vide order dated 18-12-2017 and the petitioner/wife challenged the aforesaid order by filing a Madhya Pradesh No. 87/18 before this Court but the same was withdrawn with liberty to file afresh application under appropriate Provision of section 23-A of the Hindu Marriage Act vide order dated 13-4-2018. At the strength of the order passed by this Court, the petitioner - wife filed a counter-claim under section 23-A of the Hindu Marriage Act before the Family Court seeking relief to declare the marriage between respondent and Jaya as null and void but the learned Family Court vide impugned order dated 3-8-2018 dismissed the counter-claim of the petitioner - wife as not maintainable stating that the respondent/wife is a third party, therefore, under section 11 of the Hindu Marriage Act, the counter-claim is not maintainable. However, the respondent was at liberty to file a civil suit separately to declare the marriage as null and void. 5. Learned counsel for the petitioner further submits that the impugned order is illegal, arbitrary, contrary to the law and the same has been passed without considering the law on the point and factual matrix of the instant matter. Learned trial Court has wrongly interpreted the law provided in the Hindu Marriage Act under section 11 and 23-A and wrongly held that the petitioner/wife is a third party, therefore, counter-claim is not maintainable under section 11 of the Hindu Marriage Act because only either party to the marriage can seek relief to declare marriage null and void. 6. The reliance is placed upon the judgments passed in Om Prakash Tiwary and ors. 6. The reliance is placed upon the judgments passed in Om Prakash Tiwary and ors. vs. Smt. Neetu Tiwary, ILR (2012) Madhya Pradesh 974 (relevant paras 6 and 8), Smt. Ajra Habib vs. R. K. Gupta, AIR 2002 MP 95 (relevant para 11) and Balram Yadav vs. Fulamaniya Yadav, AIR 2016 SC 2161 (relevant para 6) and prayed that the petition be allowed by setting aside the order passed by the Family Court rejecting the counter-claim under section 23A of the HMA. 7. On the other hand, learned counsel for the respondent - husband has submitted that no third person can file any counter-claim or objection in this regard. Affidavit filed along with counter-claim before the First Additional Principal Judge, Family Court, Jabalpur has not been signed by the petitioner/wife, whereas the same has been filed by one Suresh Rizwani, who is not party in the suit. However, the trial Court has given a liberty to the petitioner/wife to file a civil suit separately to declare the marriage as null and void. The petitioner has committed murder of her own daughter, aged about six months, and she has been held guilty for committing offences punishable under Sections 302 and 203 of the IPC. The conduct of the petitioner is very heinous. If the respondent has entered into a second marriage, the petitioner is at liberty to file a separate civil suit. All the citations as referred above are no useful to the petitioner. The petitioner/wife has made a concocted story only just to cause delay in the trial. Hence, the present petition be dismissed with costs and the trial Court be directed to conclude the divorce petition within three months because the case is pending since the year 2015 and seven years has already passed. However, interim order staying the proceeding of the trial Court has been granted in favour of the petitioner - wife by this Court. On these grounds, prayer is made to dismissed the petition with costs. 8. Learned counsel for the petitioner/wife has vehemently opposed the arguments advanced by counsel for the respondent that affidavit has been filed by Suresh Rizwani, who is father of the petitioner and at the point of time when the counter case was filed, the petitioner was in jail, therefore, the signature of the petitioner could not be held, therefore, counter case was supported by her father. However, signature of the petitioner is available through Superintendent of Jail, Jabalpur on the Wakalatnama of the learned counsel, by which, the learned counsel has been authorized to take legal steps. Learned counsel for the petitioner further submits that the present petition has not been filed for making the delay. There are photographs to that effect and the respondent is enjoying with second wife. Hence, it is prayed that counter case deserves to be allowed. 9. I have bestowed my anxious consideration on the rival contentions of the parties and perused the record. 10. Section 11 Void marriages of the Hindu Marriage Act, reads as under : – “S. 11 – Any marriage solemnised after the commencement of this Act shall be null and void and may, on a petition presented by either party thereto [against the other party], be so declared by a decree of nullity if it contravenes any one of the conditions specified in clauses (i), (iv) and (v) of section 5”. 11. Section 5. Conditions for a Hindu marriage reads as under : – A marriage may be solemnized between any two Hindus, if the following conditions are fulfilled, namely : (i) neither party has a spouse living at the time of the marriage; (ii) ..... (a) .... (b) ...... (c) ..... (iii) ...... (iv) the parties are not within the degrees of prohibited relationship unless the custom or usage governing each of them permits of a marriage between the two; (v) the parties are not sapindas of each other, unless the custom or usage governing each of them permits of a marriage between the two; 12. From perusal of the aforesaid provisions it is crystal clear that the petitioner/wife who is legally married first wife of the respondent/husband is mostly affected party by the second marriage performed by the respondent/husband, therefore, it is held without hesitation that the second marriage, if any, has been performed by the respondent/husband is clear cut in contravention of the clauses (i)(iv) and (v) of section 5 of the Hindu Marriage Act and, therefore, the petitioner/wife is legally entitled to avail the provisions of section 11 of the Hindu Marriage Act because the petitioner/wife is the first party not the third party as held by the learned Family Court in the impugned order. 13. Further, section 23-A of the Act itself penults the making of a counter-claim. 13. Further, section 23-A of the Act itself penults the making of a counter-claim. It reads as under : “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”. 14. It is evident from a bare reading of the above that a party defending any action brought under the Hindu Marriage Act for divorce, judicial separation or restitution of conjugal rights is not only entitled to do so on the ground of the adultery, cruelty or desertion but also make a counter-claim for any relief under the Act on anyone of those grounds. The provision makes it explicit that any such charge of adultery, cruelty and desertion if proved against the respondent, the Court may give to the petitioner any relief under this Act to which he or she would have been entitled if he or she had presented a petition seeking any such relief on that ground. That is precisely what the petitioner had done in the instant case. She had not only set-up a defence to the action brought by the respondent-husband but also made a counterclaim for a decree for dissolution of marriage under section 13(1)(ia) and (ib) of the HMA. The counter-claim ought to have been logically registered as a separate petition by the Family Court in terms of the Hindu Marriage Rules, 1956. The Family Court ought to have kept in view the well-settled legal position. In any such eventuality, the Court was required to proceed with the counter-claim and take the same to its logical conclusion. The Family Court has unfortunately remained oblivious of that position and has proceeded to dismiss the petition filed by the respondent - wife without so much as making a mention of the any counter-claim made before it. The order appears to have been passed without proper application of mind and in a hurry; and wrong interpretation of the relevant provisions of the HMA has been done. The order appears to have been passed without proper application of mind and in a hurry; and wrong interpretation of the relevant provisions of the HMA has been done. It is therefore difficult to sustain the same. 15. Apart from above, since none of the counter-claim filed by the petitioner/ wife has been decided on merits, therefore, it cannot be said that the same is not maintainable and the same has been filed with an intention to cause delay. The counter-claim filed by the petitioner/wife is maintainable because the petitioner/wife is not the third party, she is the first party and learned Family Court has wrongly interpreted provisions of section 11 of the Hindu Marriage Act. 16. Accordingly, I allow this petition and set aside the order impugned dated 3-8-2018 (Annexure-P/1) passed by the Family Court, Jabalpur and I direct that the Family Court shall decide the counter-claim filed by the petitioner/wife and proceed to deal with the same in accordance with law after service of a fresh notice upon the respondent herein. 17. Consequently, interim order dated 28-8-2018 granted by this Court stands vacated. The Court below shall proceed in the matter in accordance with law. 18. With the aforesaid, petition stands allowed and disposed of. 19. A copy of this order be sent to the learned Court below for information and its compliance.