In
this case, the application was indeed prematurely filed as the
requisite period of 10 years was short by three months on the
date of application. Admittedly, the arguments were advanced
before the learned District Judge in December, 2013 and the
impugned order was passed on 06.01.2014.
When the
arguments were completed, period of 10 years was crossed
and it was nobody's case that the parties had resumed co-
habitation or there had been any break in continuous period of
separation of the spouses.
Therefore, the learned District
Judge ought not to have been so technical and rigid in holding
that the plea was premature.
IN THE HIGH COURT OF BOMBAY AT GOA
WRIT PETITION NO. 68 OF 2014
Mr. Antonio Ferdino Varela,
Versus
Mrs. Thereza Maria Angela Varela,
CORAM : S.B. SHUKRE, J.
DATE : 10th APRIL, 2014
Citation: 2014(6)ALLMR121, 2014(5)BomCR117, 2014(5)MhLj601
Heard finally by consent.
Rule made returnable forthwith.
2.
By this writ petition, the petitioner has challenged
the legality and correctness of the order passed on 06.01.2014
by the learned District Judge-2, Panaji partly allowing the
application for amendment of the petitioner so as to add one
additional ground and partly refusing leave to incorporate
another additional ground for divorce.
3.
After hearing both the sides, the question that
arises for my consideration is:
“Whether the discretion exercised by the
learned District Judge-2 in refusing leave to
amend
the
petition
by
incorporating
additional ground for divorce based on
Article 4(8) of the Law of Divorce is
arbitrary and un-reasonable ?”
4.
It is seen from the impugned order that the one of
the grounds on which the learned District Judge refused
permission to incorporate the additional ground for divorce
based on
Article 4(8) of the Law of Divorce was that the
application for incorporation of this plea was premature as on
the date of filing of application, which was filed on 17.06.2013,
10 years period required for continuous separation had not
expired.
Another reason was that there was a pending
application filed by the respondent for restitution of conjugal
rights in the year 2011, which fact showed that de-facto
separation was not freely consented.
5.
Mr. Rohit Bras de Sa, learned Counsel appearing on
behalf of the petitioner has invited my attention to the relevant
portion of the order passed by the learned District Judge
showing that though the learned District Judge has placed her
reliance upon the cases cited by the learned Counsel for the
petitioner, the ratio of the cases was not properly applied. He
submitted that in these very cases, one of which is the case of
Smt. Sheetal Prakash Pai nee Vijaya Bhangui vs. Dr.
Prakash Ramnath Pai [2010 (112)BOM LR 4943] and
second is the decision rendered in the case of Alvito
Laurento Fernandes vs. Maria Elso de Aliveira Gomes in
First Appeal No. 66 of 1997 on 20.10.2000 by the learned
Single Judge of this High Court,
Goa Bench, it has been
clearly held that while deciding the issue of the de-facto
separation under Article 4(8) of the Law of Divorce, what is
required to be seen and assessed by the Court is as to whether
there is de-facto separation for continuous period of 10 years
and it is not necessary to go into the cause of separation of
the spouses and it is something which could be inferred from
the conduct of the parties and the evidence on record. He has
also submitted that in any case it is well settled law, while
deciding amendment application, the court cannot go into the
merits of the plea sought to be incorporated by way of
amendment.
Therefore, he has submitted that additional
ground to be incorporated in the petition ought to have been
allowed by the learned District Judge.
6.
Mr. Arolkar, learned Counsel appearing on behalf of
the respondent submits that the application as filed by the
petitioner was premature and on the date of the application,
period of 10 years of separation was not completed and that
there was also no free consent by the respondent. He further
submits that the respondent filed an application for restitution
of conjugal rights which was pending and, therefore, learned
District Judge was right in finding that pendency of the
application showed that there was no free consent.
He has
also submitted that even if the amendment sought for is
allowed, it would relate back to the date of application and
that would mean the application was prematurely filed.
He
has therefore, urged that the impugned order is consistent
with the well settled principles of law and does not call for any
interference in the writ jurisdiction of this Court.
7.
I have already referred to the reasons on which the
plea of additional ground for divorce has been dis-allowed to
be taken by the petitioner. Atleast from one of those reasons,
it becomes clear that the learned District Judge has entered
into the merits of the plea sought to be taken by the petitioner.
While considering an amendment application, it is well settled
law, it is not open to the Court to enter into the merits of the
plea sought to be raised and the Court has to decide the
application purely on the basis of the principles applicable to
the amendment of pleadings contained in Order 6 Rule 17 of
C.P.C.
The relevant considerations could be, whether the
amendment is necessary for deciding the real controversy
between the parties, what is the stage of the proceeding when
amendment application is filed, and if it is filed after
commencement of trial, whether the plea could have been
raised before commencement of the trial. The learned District
Judge, however, by finding that pendency of application for
restitution of conjugal rights showed that separation was not
freely consented, decided on merits of the plea, which is not
permissible.
Therefore, on this ground itself, the impugned
order cannot be sustained in law.
8.
Even otherwise, it is seen that the learned District
Judge has followed the law laid down in the cases of Smt.
Sheetal Prakash Pai and Alvito Laurento Fernandes cited
(supra), and therefore, one fails to understand as to how he
could have proceeded to say that the circumstances of the
case indicated that there was no free consent to the separation
of the spouses merely because the application for restitution of
conjugal rights was pending. In the case of Alvito Laurento
Fernandes (supra) in particular, it has been clearly laid down
that for proving divorce on the ground under Article 4(8) of the
Law of Divorce, the free consent is not an issue to be proved
and it is a presumption that flows from the proof of three
facts, namely,
(a) the couple is de-facto separated.
(b) the separation has been un-interrupted and that
(c) the separation is for more than 10 years.
Similar law has been laid down in the case of Smt.
Sheetal Prakash Pai (supra). Therefore, it was not open to
the learned District Judge to say that additional ground for
divorce cannot be allowed to be taken by the petitioner.
9.
As regards the objection that the application for
amendment of plea by incorporating the aforesaid plea was
prematurely filed as on the date of application, this very
ground was not available to the petitioner, I must say, in such
a case, the Court has to ensure that cause of justice is
advanced and not frustrated for some technical reasons.
In
this case, the application was indeed prematurely filed as the
requisite period of 10 years was short by three months on the
date of application. Admittedly, the arguments were advanced
before the learned District Judge in December, 2013 and the
impugned order was passed on 06.01.2014.
When the
arguments were completed, period of 10 years was crossed
and it was nobody's case that the parties had resumed co-
habitation or there had been any break in continuous period of
separation of the spouses.
Therefore, the learned District
Judge ought not to have been so technical and rigid in holding
that the plea was premature.
In any case, the question of
tenability of the additional plea could have been left open to be
decided on merits, as there were subsequent events which had
a bearing on the ripening of the plea or otherwise.
The
importance of subsequent events has been considered by the
learned Single Judge of this Court in the case of Smt. Sheetal
Prakash Pai (supra), by referring to the observations of
Hon'ble Apex Court in the case of Ramesh Kumar Vs. Kesho
Ram 1992 Supp (2) SCC 623, in paragraph 6, which are
reproduced thus:
“6. The normal rule is that in any litigation
the rights and obligations of the parties are
adjudicated upon as they obtain at the
commencement of the lis.
subject
to
an
exception.
But this is
Wherever
subsequent events of fact or law which
have a material bearing on the entitlement
of the parties to relief or on aspects which
bear on the moulding of the relief occur,
WP No.68 of 2014
9
the court is not precluded from taking a
'cautious cognizance' of the subsequent
changes of fact and law to mould the
relief.”
10.
By not keeping the said question open to be decided
on merits, the learned district Judge has acted un-reasonably
and, therefore, for this reason also the impugned order cannot
be upheld.
11.
In the circumstances, I do not find any merit in the
argument canvassed on behalf of the respondent.
For the
reasons stated earlier, I am of the view that the impugned
order is un-reasonable and arbitrary, and it needs to be
quashed and set aside to the extent it rejects incorporation of
additional ground under Article 4(8) of the Law of Divorce.
The point is answered accordingly.
12.
The impugned order is quashed and set aside to the
extent of its rejecting the incorporation of additional ground
under Article 4(8) of the Law of Divorce. The amendment
application on this count stands allowed.
Amendment to be
WP No.68 of 2014
10
carried out within two weeks. Consequential amendments are
also allowed and the respondent can make consequential
amendments within the time granted by the trial Court.
Additional issue on this aspect, if any, may be framed in
accordance with law. The writ petition is allowed accordingly.
13. Rule is made absolute in above terms.
14. Writ petition stands disposed of.
S. B. SHUKRE, J.
EV
this case, the application was indeed prematurely filed as the
requisite period of 10 years was short by three months on the
date of application. Admittedly, the arguments were advanced
before the learned District Judge in December, 2013 and the
impugned order was passed on 06.01.2014.
When the
arguments were completed, period of 10 years was crossed
and it was nobody's case that the parties had resumed co-
habitation or there had been any break in continuous period of
separation of the spouses.
Therefore, the learned District
Judge ought not to have been so technical and rigid in holding
that the plea was premature.
IN THE HIGH COURT OF BOMBAY AT GOA
WRIT PETITION NO. 68 OF 2014
Mr. Antonio Ferdino Varela,
Versus
Mrs. Thereza Maria Angela Varela,
CORAM : S.B. SHUKRE, J.
DATE : 10th APRIL, 2014
Citation: 2014(6)ALLMR121, 2014(5)BomCR117, 2014(5)MhLj601
Heard finally by consent.
Rule made returnable forthwith.
2.
By this writ petition, the petitioner has challenged
the legality and correctness of the order passed on 06.01.2014
by the learned District Judge-2, Panaji partly allowing the
application for amendment of the petitioner so as to add one
additional ground and partly refusing leave to incorporate
another additional ground for divorce.
3.
After hearing both the sides, the question that
arises for my consideration is:
“Whether the discretion exercised by the
learned District Judge-2 in refusing leave to
amend
the
petition
by
incorporating
additional ground for divorce based on
Article 4(8) of the Law of Divorce is
arbitrary and un-reasonable ?”
4.
It is seen from the impugned order that the one of
the grounds on which the learned District Judge refused
permission to incorporate the additional ground for divorce
based on
Article 4(8) of the Law of Divorce was that the
application for incorporation of this plea was premature as on
the date of filing of application, which was filed on 17.06.2013,
10 years period required for continuous separation had not
expired.
Another reason was that there was a pending
application filed by the respondent for restitution of conjugal
rights in the year 2011, which fact showed that de-facto
separation was not freely consented.
5.
Mr. Rohit Bras de Sa, learned Counsel appearing on
behalf of the petitioner has invited my attention to the relevant
portion of the order passed by the learned District Judge
showing that though the learned District Judge has placed her
reliance upon the cases cited by the learned Counsel for the
petitioner, the ratio of the cases was not properly applied. He
submitted that in these very cases, one of which is the case of
Smt. Sheetal Prakash Pai nee Vijaya Bhangui vs. Dr.
Prakash Ramnath Pai [2010 (112)BOM LR 4943] and
second is the decision rendered in the case of Alvito
Laurento Fernandes vs. Maria Elso de Aliveira Gomes in
First Appeal No. 66 of 1997 on 20.10.2000 by the learned
Single Judge of this High Court,
Goa Bench, it has been
clearly held that while deciding the issue of the de-facto
separation under Article 4(8) of the Law of Divorce, what is
required to be seen and assessed by the Court is as to whether
there is de-facto separation for continuous period of 10 years
and it is not necessary to go into the cause of separation of
the spouses and it is something which could be inferred from
the conduct of the parties and the evidence on record. He has
also submitted that in any case it is well settled law, while
deciding amendment application, the court cannot go into the
merits of the plea sought to be incorporated by way of
amendment.
Therefore, he has submitted that additional
ground to be incorporated in the petition ought to have been
allowed by the learned District Judge.
6.
Mr. Arolkar, learned Counsel appearing on behalf of
the respondent submits that the application as filed by the
petitioner was premature and on the date of the application,
period of 10 years of separation was not completed and that
there was also no free consent by the respondent. He further
submits that the respondent filed an application for restitution
of conjugal rights which was pending and, therefore, learned
District Judge was right in finding that pendency of the
application showed that there was no free consent.
He has
also submitted that even if the amendment sought for is
allowed, it would relate back to the date of application and
that would mean the application was prematurely filed.
He
has therefore, urged that the impugned order is consistent
with the well settled principles of law and does not call for any
interference in the writ jurisdiction of this Court.
7.
I have already referred to the reasons on which the
plea of additional ground for divorce has been dis-allowed to
be taken by the petitioner. Atleast from one of those reasons,
it becomes clear that the learned District Judge has entered
into the merits of the plea sought to be taken by the petitioner.
While considering an amendment application, it is well settled
law, it is not open to the Court to enter into the merits of the
plea sought to be raised and the Court has to decide the
application purely on the basis of the principles applicable to
the amendment of pleadings contained in Order 6 Rule 17 of
C.P.C.
The relevant considerations could be, whether the
amendment is necessary for deciding the real controversy
between the parties, what is the stage of the proceeding when
amendment application is filed, and if it is filed after
commencement of trial, whether the plea could have been
raised before commencement of the trial. The learned District
Judge, however, by finding that pendency of application for
restitution of conjugal rights showed that separation was not
freely consented, decided on merits of the plea, which is not
permissible.
Therefore, on this ground itself, the impugned
order cannot be sustained in law.
8.
Even otherwise, it is seen that the learned District
Judge has followed the law laid down in the cases of Smt.
Sheetal Prakash Pai and Alvito Laurento Fernandes cited
(supra), and therefore, one fails to understand as to how he
could have proceeded to say that the circumstances of the
case indicated that there was no free consent to the separation
of the spouses merely because the application for restitution of
conjugal rights was pending. In the case of Alvito Laurento
Fernandes (supra) in particular, it has been clearly laid down
that for proving divorce on the ground under Article 4(8) of the
Law of Divorce, the free consent is not an issue to be proved
and it is a presumption that flows from the proof of three
facts, namely,
(a) the couple is de-facto separated.
(b) the separation has been un-interrupted and that
(c) the separation is for more than 10 years.
Similar law has been laid down in the case of Smt.
Sheetal Prakash Pai (supra). Therefore, it was not open to
the learned District Judge to say that additional ground for
divorce cannot be allowed to be taken by the petitioner.
9.
As regards the objection that the application for
amendment of plea by incorporating the aforesaid plea was
prematurely filed as on the date of application, this very
ground was not available to the petitioner, I must say, in such
a case, the Court has to ensure that cause of justice is
advanced and not frustrated for some technical reasons.
In
this case, the application was indeed prematurely filed as the
requisite period of 10 years was short by three months on the
date of application. Admittedly, the arguments were advanced
before the learned District Judge in December, 2013 and the
impugned order was passed on 06.01.2014.
When the
arguments were completed, period of 10 years was crossed
and it was nobody's case that the parties had resumed co-
habitation or there had been any break in continuous period of
separation of the spouses.
Therefore, the learned District
Judge ought not to have been so technical and rigid in holding
that the plea was premature.
In any case, the question of
tenability of the additional plea could have been left open to be
decided on merits, as there were subsequent events which had
a bearing on the ripening of the plea or otherwise.
The
importance of subsequent events has been considered by the
learned Single Judge of this Court in the case of Smt. Sheetal
Prakash Pai (supra), by referring to the observations of
Hon'ble Apex Court in the case of Ramesh Kumar Vs. Kesho
Ram 1992 Supp (2) SCC 623, in paragraph 6, which are
reproduced thus:
“6. The normal rule is that in any litigation
the rights and obligations of the parties are
adjudicated upon as they obtain at the
commencement of the lis.
subject
to
an
exception.
But this is
Wherever
subsequent events of fact or law which
have a material bearing on the entitlement
of the parties to relief or on aspects which
bear on the moulding of the relief occur,
WP No.68 of 2014
9
the court is not precluded from taking a
'cautious cognizance' of the subsequent
changes of fact and law to mould the
relief.”
10.
By not keeping the said question open to be decided
on merits, the learned district Judge has acted un-reasonably
and, therefore, for this reason also the impugned order cannot
be upheld.
11.
In the circumstances, I do not find any merit in the
argument canvassed on behalf of the respondent.
For the
reasons stated earlier, I am of the view that the impugned
order is un-reasonable and arbitrary, and it needs to be
quashed and set aside to the extent it rejects incorporation of
additional ground under Article 4(8) of the Law of Divorce.
The point is answered accordingly.
12.
The impugned order is quashed and set aside to the
extent of its rejecting the incorporation of additional ground
under Article 4(8) of the Law of Divorce. The amendment
application on this count stands allowed.
Amendment to be
WP No.68 of 2014
10
carried out within two weeks. Consequential amendments are
also allowed and the respondent can make consequential
amendments within the time granted by the trial Court.
Additional issue on this aspect, if any, may be framed in
accordance with law. The writ petition is allowed accordingly.
13. Rule is made absolute in above terms.
14. Writ petition stands disposed of.
S. B. SHUKRE, J.
EV
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