Sunday, 19 May 2019

Whether petitioner can add ground for divorce by amending his HMP petition?

After hearing both sides, what appears on record is that the proposed amendments are based upon the grounds already available to the petitioner under Section 10 of the Hindu Marriage Act and also the relief which can be even otherwise sought by the petitioner. By the proposed amendments, the petitioner is seeking to add ground in Clause (i-a) of Section 13(1) of the Hindu Marriage Act and as this ground is also available under Section 10 of the Act, I do not see any impediment in allowing such an amendment. As regards the additional relief of divorce being sought by the petitioner, I am of the view that it would not basically change the nature of proceedings as it is not something which would efface the original relief which was of a decree for judicial separation sought by the petitioner. The proposed amendment can be said to be amounting to changing the nature of proceedings only when it is completely inconsistent with the original amendment or is of such a nature as to have the effect of rendering the original pleadings absurd or having no effect. Such is not the impact which the proposed amendment in respect of addition of the relief for divorce would have on the original relief of the judicial separation. Therefore, on this count also, I do not think that the proposed amendments could be refused by the Court.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Writ Petition No. 2012 of 2017

Decided On: 15.06.2018

 Premdeep Nishikant Matlane Vs.  Bhavana

Hon'ble Judges/Coram:
S.B. Shukre, J.

Citation: 2019(2) MHLJ 575

1. Rule. Rule made returnable forthwith. Heard finally by consent.

2. The order refusing amendment application passed on 15/03/2017 by the Judge, Family Court, Akola is under challenge in the present petition. After hearing both sides, what appears on record is that the proposed amendments are based upon the grounds already available to the petitioner under Section 10 of the Hindu Marriage Act and also the relief which can be even otherwise sought by the petitioner. By the proposed amendments, the petitioner is seeking to add ground in Clause (i-a) of Section 13(1) of the Hindu Marriage Act and as this ground is also available under Section 10 of the Act, I do not see any impediment in allowing such an amendment. As regards the additional relief of divorce being sought by the petitioner, I am of the view that it would not basically change the nature of proceedings as it is not something which would efface the original relief which was of a decree for judicial separation sought by the petitioner. The proposed amendment can be said to be amounting to changing the nature of proceedings only when it is completely inconsistent with the original amendment or is of such a nature as to have the effect of rendering the original pleadings absurd or having no effect. Such is not the impact which the proposed amendment in respect of addition of the relief for divorce would have on the original relief of the judicial separation. Therefore, on this count also, I do not think that the proposed amendments could be refused by the Court.

3. There is also an argument made on behalf of the respondent about the bar of Order VI Rule 17 of the Code of Civil Procedure in the sense that, according to the respondent, the proposed amendments have been filed belatedly at the time when the trial of the suit commenced and no explanation for the delay has been given by the petitioner. The argument, I must say with due respect, cannot be accepted for the reason that this is not a case of possession of knowledge of material facts at some point of time, but a case of change of mind, resulting in change of decision. Due diligence test can be reasonably applied to the facts already within the knowledge of a party and yet not pleaded at the right time. When it comes to change of mind or change of decision at a later point, the case is one of a fresh event having taken place which was neither existing in gross earlier nor something in contemplation of a party before. This would enable me to hold that the test of due diligence to such matters does not apply.

4. Apart from what is said earlier, I feel, by allowing the amendment application, no prejudice is likely to be caused to the respondent as she would always be given an opportunity to make her consequential pleadings. Besides, the petitioner, even otherwise being entitled to bring a separate suit for divorce, may as well be permitted to do so here only to avoid multiplicity of litigation.

5. In this view of the matter, I find that the impugned order cannot be sustained in the eye of law. The amendment application deserves to be allowed, as it will also avoid multiplicity of litigation.

6. The writ petition is allowed. The amendment application [Exh. 12] is allowed. Necessary amendment be carried out within two weeks from the date of next date already fixed in the matter. Appropriate opportunity of defence shall be made available to the respondent. In the facts and circumstances of the case, I am not inclined to impose any costs upon the petitioner.

7. Rule is made absolute in the above terms. The parties to bear their own costs.
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