Whether family court mumbai can entertain divorce petition on the ground that marriage reception took place at mumbai?

ANALYSIS AND CONCLUSION :

13. The question for determination in the present proceedings is whether the Family Court at Mumbai has jurisdiction to try and entertain under section 19 (iii) of Hindu Marriage Act, the Divorce Petition filed by Husband under Section 13 (1)(ia) of Hindu Marriage Act ?

14. There is no dispute between the parties that all the rituals of the marriage took place on 7 June, 2015 at Jodhpur, Rajasthan. In Mumbai, there was only a wedding reception on 11 June, 2015. In my view, there can't be any doubt that a wedding reception can't be called as a part of marriage ritual.

15. Admittedly, for a period of less than 10 days, the husband and wife stayed in the home of the parents of husband at Mumbai and thereafter the husband left for U.S.A. on 15 June, 2015 and the wife left on 1 August, 2015 to U.S.A. there is no dispute that the husband and the wife started living separately from 15 October, 2019 therefore, approximately around four years they stayed together in U.S.A. and occasionally in these four years, visited India.

16. Admittedly the wife has filed the divorce petition in U.S.A. and the husband has filed a divorce petition in Family Court at Mumbai. The fact that the wife has filed a divorce petition at U.S.A. this itself shows that the wife is not admitting the jurisdiction of Family Court in Mumbai, Maharashtra.

21. In the present proceedings, the husband was in U.S.A. at the time of presentation of Divorce Petition in Mumbai, which was notarized in U.S.A. so therefore, the Divorce Petition could not be filed in Mumbai, as Section 19 (iv) of the Hindu Marriage Act, contemplates that the Divorce Petition can be filed at the place where petitioner is residing, if the wife is residing outside India.

29. In the present proceedings the Husband has notarized his petition in U.S.A. and filed it in Mumbai through Power of Attorney. In my opinion in the present proceedings, the last residing together of the couple would be U.S.A., and it can't be Mumbai, where the couple briefly stayed for less than 10 days immediately after marriage, in the home of parents of Husband, hence the Family Court in Mumbai will have no jurisdiction, under sub-section (iii) of 19 of Hindu Marriage Act, to entertain Divorce Petition in Mumbai.

 IN THE HIGH COURT OF BOMBAY

Writ Petition No. 8829 of 2023

Decided On: 15.04.2024

Shikha Lodha Vs. Suketu Shah and Ors.

Hon'ble Judges/Coram:

Rajesh S. Patil, J.

Citation: MANU/MH/2423/2024.

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Whether wife is entitled to get divorce from husband on the ground of mental cruelty if he publish allegations against her in Newspaper and prosecute her relatives?

 In our considered view, a partner in matrimonial relationship who goes to the extent of filing police complaints against mother, friend, well wishers, Prosecutor or Advocate of his own wife, is a kind of person who is difficult to deal with and certainly causing mental harassment. {Para 31}

32. Original copy of newspaper Dainik Divya Marathi dated 13.07.2014 is at Exh. 279, in which alleged defamatory news about Respondent/Wife was published at the instance of Appellant/husband. Whether the actual news is defamatory or not is irrelevant for the present purpose. The fact that allegations and accusations are leveled by a party (husband in this case) against the spouse (wife) in newspaper, itself has an effect of lowering her reputation in the eyes of her peers and colleagues. Embarrassment is a bitter bonus ! Learned counsel for the Respondent/wife has submitted that because of news published by the Appellant/husband, the reputation of the Respondent/wife got damaged and she was embarrassed before her peers, colleagues and co-workers. Judgments of Hon'ble Supreme Court in the matter of Raj Talreja vs. Kavita Talreja MANU/SC/0493/2017 : (2017) 14 SCC 194 and K. Shrinivas Rao vs. D.A. Deepa MANU/SC/0180/2013 : (2013) 5 SCC 226, both arising out of matrimonial disputes, are relied upon in support of this case. We fully agree with the submission. The proposition of law laid down in the said cases apply to the fact of this case.

 IN THE HIGH COURT OF BOMBAY

Family Court Appeal No. 36 of 2021, 

Decided On: 24.03.2023

Uday  Vs. Rupali 

Hon'ble Judges/Coram:

R.D. Dhanuka and M.M. Sathaye, JJ.

Author: M.M. Sathaye, J.

Citation: MANU/MH/1142/2023.

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Whether the court can quash proceeding under Domestic violence Act if husband takes the plea of customary divorce?

 Even if assuming that the learned Judicial Magistrate is vested with jurisdictional competence to determine the validity of a customary divorce deed, yet no such determination could take place merely on an application moved by the respondent-husband. The respondent is obliged to lay proper foundation in pleadings, impeccable evidence to prove long time custom and then establish that their marriage was validly dissolved by resorting to customary rights. Unless the respondent proves prevalence of the custom in conformity with public policy and consequential enforceability of the divorce deed dated 05.01.2014, there is a statutory presumption of subsisting marriage between the parties. In that case, the complaint under the D.V. Act cannot be quashed at the threshold, on the ground of its nonmaintainability. The High Court thus legally erred in assuming the validity of customary divorce deed 05.01.2014 and then in proceeding to quash the proceedings under the D.V. Act on the premise that the parties are no longer legally wedded husband and wife. Such an inference can be drawn only after the respondent successfully proves the validity and enforceability of customary divorce deed dated 05.01.2014. We reiterate that the onus to prove the customary divorce deed lies on the respondent who is relying upon the same, and on the appellant to prove to the contrary. {Para 12}

IN THE SUPREME COURT OF INDIA 

CRIMINAL APPELLATE JURISDICTION 

CRIMINAL APPEAL NO.2905 OF 2023

 SANJANA KUMARI Vs VIJAY KUMAR

Coram: SURYA KANT; J., DIPANKAR DATTA; J. 

Dated: September 18, 2023.

Read full Judgment here: Click here

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Whether Hindu Marriage Can Be Dissolved Through Customary Divorce If Existence Of Such A Customary Right Is not Established ?

It is to be noted that the deed in question is purported to be a document which is claimed to be in conformity with the customs applicable for divorce in the community to which the parties to this litigation belong to. As per the Hindu law administered by courts in India divorce was not recognised as a means to put an end to marriage, which was always considered to be a sacrament, with only exception where it is recognised by custom. Public policy, good morals and the interests of society were considered to require and ensure that, if at all, severance should be allowed only in the manner and for the reason or cause specified in law. Thus such a custom being an exception to the general law of divorce ought to have been specially pleaded and established by the party propounding such custom since the said custom of divorce is contrary to the law of the land and which, if not proved, will be a practice opposed to public policy. Therefore, there was an obligation on the trial court to have framed an issue whether there was proper pleadings by the party contending the existence of a customary divorce in the community to which the parties belonged and whether such customary divorce and compliance with the manner or formalities attendant thereto was in fact established in the case on hand to the satisfaction of the court. In the instant case, we have perused the pleadings of the parties before the trial court and we do not find any material to show that prevalence of any such customary divorce in the community, based on which the document of divorce was brought into existence was ever pleaded by the defendant as required by law or any evidence was led in this case to substantiate the same. It is true that in the courts below the parties did not specifically join issue in regard to this question and the lawyers appearing for the parties did orally agree that the document in question was in fact in accordance with the customary divorce prevailing in the community to which the parties belonged but this consensus on the part of the counsel or lack of sufficient pleading in the plaint or in the written statement would not, in our opinion, permit the court to countenance the plea of customary divorce unless and until such customary divorce is properly established in a court of law. In our opinion, even though the plaintiff might not have questioned the validity of the customary divorce, the court ought to have appreciated the consequences of there not being a customary divorce based on which the document of divorce has come into existence bearing in mind that a divorce by consent is also not recognisable by a court unless specifically permitted by law…”

(Emphasis supplied) {Para 7}

 IN THE SUPREME COURT OF INDIA 

CRIMINAL APPELLATE JURISDICTION 

CRIMINAL APPEAL NO.2905 OF 2023

 SANJANA KUMARI Vs VIJAY KUMAR

Coram: SURYA KANT; J., DIPANKAR DATTA; J. 

Dated: September 18, 2023.

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Important judgments on orders as to disposal of property u/s. 27 of The Hindu Marriage Act.

 

1) Whether independent application U/S 27 of Hindu marriage Act is maintainable?

From the perusal of the provision of Section 27, it is clear that the application under Section 27 is not maintainable independently. As per Section 27 in any pending proceeding under this Act the Court may make such provisions in the decree as it deems just and proper with respect to any property presented, at or about the time of marriage. The impugned order passed by Family Court appears to be justified, as under Section 27 of the Act no such independent application is maintainable.

IN THE HIGH COURT OF MADHYA PRADESH

Decided On: 20.09.2007

 Lalita Devi  Vs.  Laxminarayan

Hon'ble Judges/Coram:

A.K. Gohil and Sheela Khanna, JJ.

Citation: I (2008) DMC 351 (MP),MANU/MP/0571/2007.

https://www.lawweb.in/2020/07/whether-independent-application-us-27.html

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Relaxation of 'locus standi' rule for offences and proceedings arising out of marriage and its justification

 The concept of 'locus standi' in Indian law dictates who has the legal right to initiate court proceedings in a particular matter. Traditionally, the rule for matrimonial offenses and proceedings was strict, meaning only the directly affected spouses had the standing to file complaints or petitions. This often left vulnerable individuals, particularly women, facing challenges in seeking legal redressal for marital wrongs.

In recent years, however, there has been a growing recognition of the need to relax the locus standi rule for offences and proceedings arising out of marriage. This relaxation aims to improve access to justice for victims of domestic violence, adultery, cruelty, and other matrimonial offenses.

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What is the difference between judicial separation and divorce?

S 10 of Hindu Marriage Act provides for Judicial separation:-

(1) Either party to a marriage, may present a petition praying for a decree for judicial separation on any of the grounds specified in sub-section (1) of section 13, and in the case of a wife also on any of the grounds specified in sub-section (2) thereof, as grounds on which a petition for divorce might have been presented.]

(2) Where a decree for judicial separation has been passed, it shall no longer be obligatory for the petitioner to cohabit with the respondent, but the court may, on the application by petition of either party and on being satisfied of the truth of the statements made in such petition, rescind the decree if it considers it just and reasonable to do so.

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What is distinction between “Void Marriages” and “Voidable Marriages” as per Hindu Marriage Act?

 Under the Hindu Marriage Act 1955, "Void Marriages" and "Voidable Marriages" are two distinct legal concepts:

1. Void Marriages: A void marriage is considered invalid from the beginning, as if it never took place. It is void ab initio, meaning it is treated as though it never existed. A marriage is void if it contravenes Clauses(1) (4) and (5) of S 5 of Hindu Marriage Act.  The grounds for a marriage to be declared void are specified in Section 11 of the Hindu Marriage Act. Some common grounds for void marriages include:

• Bigamy: When either party is already married to another person at the time of marriage.{Clause 1}

• Prohibited relationship: When the parties are within the degrees of prohibited relationship, such as close blood relatives.{clause 4}

• Sapindas: If The parties are sapindas of each other.{Clause 5}.

2. Voidable Marriages: A voidable marriage, on the other hand, is initially considered valid, but can be annulled by either party based on certain grounds specified in Section 12 of the Hindu Marriage Act. The grounds for a marriage to be declared voidable include:

sub-Section(1)

• (a )Non-consummation: When the marriage has not been consummated due to the impotence of either party.

• (b )Mental disorder: When either party suffers from a mental disorder that makes them unfit for marriage.

• (c ) Consent obtained by fraud or force: When consent for the marriage was obtained through coercion, fraud, or undue influence.

• (d) Respondent pregnant at the time of marriage by some person other than the petitioner.

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Important Notes and Caselaws on Family law(Part 3)

1) The Personal Laws (Amendment) Act, 2010

https://www.lawweb.in/2013/04/the-personal-laws-amendment-act-2010.html

2) Important provisions of Muslim Women (Protection of Rights on Marriage) Act, 2019.

https://www.lawweb.in/2023/09/important-provisions-of-muslim-women.html

3) Important Notes on Evidence Act

https://www.lawweb.in/2020/05/important-notes-on-evidence-act.html

4) Important Notes on Civil procedure Code

https://www.lawweb.in/2020/05/important-notes-on-civil-procedure-code.html

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Important Notes and Caselaws on Family law(Part 2)

 

1) Important Notes on Hindu Law

https://www.lawweb.in/2020/05/important-notes-on-hindu-law.html

2) NOTES ON HINDU MARRIAGE ACT 1955

https://www.lawweb.in/2018/06/notes-on-hindu-marriage-act.html

3) Important Judgments on maintenance U/S 125 CRPC, S 24 of Hindu Marriage Act and DV Act

https://www.lawweb.in/2020/05/important-judgment-on-maintenance-us.html

4) Leading Supreme Court Judgment on Divorce on ground of Irretrievable Breakdown of Marriage

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 812 of 2004

Decided On: 21.03.2006

Naveen Kohli Vs. Neelu Kohli

Hon'ble Judges/Coram:

B.N. Agrawal, A.K. Mathur and Dalveer Bhandari, JJ.

Citation: AIR 2006 SC 1675

https://www.lawweb.in/2019/08/leading-supreme-court-judgment-on.html

5) Leading judgment of Supreme court on Divorce by mutual consent

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 11158 of 2017 

Decided On: 12.09.2017

 Amardeep Singh Vs. Harveen Kaur

Hon'ble Judges/Coram:

A.K. Goel and U.U. Lalit, JJ.

Civil appeal No: 11158/2017.
Citation:(2017) 8 SCC 746,AIR 2017 SC 4417.

https://www.lawweb.in/2017/09/whether-six-month-cooling-off-period-is.html

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Whether Non-Participation In A Proceeding Of A Restitution Of Conjugal Rights Has Civil Consequences ?

Taking note of Order XXI Rule 32 of the Code of Civil

Procedure, we are of the view that it cannot be said that non participation in a proceeding of a restitution of conjugal

rights, of the party who seeks for transfer of such proceeding

is absolutely impactless. In fact, it has civil consequences

as is evident from the aforesaid provision. In such

circumstances and taking into account the distance of the

court where the case sought to be transferred is pending and

the place where the petitioner-wife is presently residing, we

are inclined to allow the captioned transfer petition.

Consequently, Transfer Petition is allowed. Accordingly,

petition for restitution of conjugal rights filed under

Section 9 of the Hindu marriage Act, the Hindu Marriage

Petition No. 01/2023 titled “Ankur Ashokbhai Pawar vs. Smt.

Poonam Ankur Pawar“ pending before the Court of Ld. District

Judge of Dadra & Nagar Haveli at Silvassa stands transferred

to the Court of Ld. Principal Judge, Family Court, Ahmedabad,

Gujarat.

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

TRANSFER PETITION (CIVIL) NO.973 OF 2023

POONAM ANKUR PAWAR  Vs ANKUR ASHOKBHAI PAWAR 

Dated: 27.07.2023.

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Civil Manual Bombay high Rules U/S 14 and 21 of the Hindu Marriage Act 1955

Rules framed by the High Court under sections 14 and 21 of the Hindu Marriage

Act 1955 (XXV of 1955) as amended by the Marriage Laws (Amendment)

Act, 1976 (India Act No. 68 of 1976), for carrying out the purpose

of the Act.

330. (1) Short title and Commencement : (i) These Rules may be called the Hindu Marriage and Divorce Rules, 1955.

(ii) These Rules shall come into force on 1st December 1955.

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Can allegations of demand of dowry and alcohol consumption made by wife amount to ‘cruelty’?

 The allegations made by the respondent wife with regard to the petitioner demanding dowry and indulging in alcohol consumption, in our view, do not tantamount to making serious allegations impinging on the character of the petitioner, to such an extent, that they would be the cause of immense mental agony and cruelty to the petitioner such that it would make it impossible for the petitioner to live with the Respondent wife. Moreover, the past conduct of the Appellant shows that the allegation of the Appellant indulging in drinking of liquor is not false.

In the High Court of Delhi at New Delhi

(Before Vipin Sanghi and Jasmeet Singh, JJ.)

Harish Kumar  Vs Sarita 

MAT. APP.(F.C) 146/2020 and CM APPL. 30682/2020

Decided on October 6, 2021

Citation: 2021 SCC OnLine Del 4937

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Whether the burden of proof is on the person to prove a mistake if he pleads mistake?

 Adverting to the questions of law framed, it is admitted by the respondent that she has been described as a Christian in all her educational records. She would claim that it is a mistake. Once the fact that there has been such wrong description is admitted, it is for the person, who claims that the wrong description is a result of  mistake, to prove the same.

I am, therefore, of the considered opinion that the courts below were not right in placing burden of proving misrepresentation on the appellant and concluding that the appellant has not discharged the burden. Once the plea of mistake is raised, it is for the party pleading mistake to prove the same. 

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

C.M.S.A(MD)No.05 of 2009

P.Sivakumar Vs  S.Beula 

Pronounced on: 25.02.2021

Coram:  MR.JUSTICE R.SUBRAMANIAN

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Whether a party can rely on customary divorce in the absence of a declaration of validity of said divorce by the civil court?

 In the utter absence of any evidence, let alone conclusive, that the divorce decree executed purportedly between respondent no.11 and her deceased husband was endorsed by any valid custom, the exception envisaged in Section 29(2) of the 1955 Hindu Marriage Act would not be attracted. Thus, the spouses had to revert back to Section 13 of the Act, which sanctions dissolution of marriage only by a decree of divorce, for the dissolution of marriage to be valid in the eye of law.

25. Such facts, coupled with the fact that pension was granted earlier in

favour of respondent no.11 upon a valid sanction being issued by the

respondent-authorities, it would be unjust to deprive respondent

no.11 from such pension at the behest of the petitioner, merely on the

basis of the petitioner’s assertion on oath in this writ petition that a

deed of divorce, supported by valid and recognized customs, was

executed between respondent no.11 and her deceased husband.

 In the High Court at Calcutta

Constitutional Writ Jurisdiction

Appellate Side

WPA No. 2346 of 2018

Smt. Krishna Veni Vs. The Union of India and others

Judgment on : 18.02.2021

Coram: The Hon’ble Justice Sabyasachi Bhattacharyya

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When petition for annulment of marriage by husband is not maintainable?

 The husband has contended and deposed that, he came to know about the fact of first marriage of his wife only when the quarrel broke between him and wife on 02-02-2013. He contends that, thereafter he made investigation and came to know about the other details. The wife says that, she had disclosed everything to the husband at the time of settlement of marriage. The husband obviously denied the suggestion to that effect in his cross, however it is to be noted that he has not examined anybody else to support his contention or even in contemplation of the fact that the wife would lead evidence to prove that, at the time of settlement of marriage such fact was disclosed to the husband. He admits in his cross examination that, his marriage with wife was performed in a temple in the form of "Shiv Vivah". In fact it ought to have been extracted by the concerned Court who was recording the evidence as to what is the meaning of "Shiv Vivah"; may be by asking Court question. But it appears that, the learned First Appellate Court has tried to extract it at the time of submissions of arguments before him and it has been specifically observed that, both the learned advocates representing the respective parties submitted that the mode and ceremony of "Shiv" marriage is marriage like a marriage of "Gandharva" marriage which generally followed in cases of second marriage of either of the spouses. That means, this fact is even admitted by the advocate who was representing the husband before the First Appellate Court. Independently also it is to be noted that, the wife has examined D.W.3 Devidas Arjun Patil and D.W.4 Kishor Laxman Aadhav who were present at the time of marriage. They are not related to the wife but the father of the wife was their friend. Both of them have stated that, information regarding first marriage of wife was given to the husband at the time of marriage. In the cross-examination except denial there is nothing. There was no reason to disbelieve these two persons. Therefore, taking into consideration the said admission given by the husband and the evidence that has been led by the wife in her testimony as well as by examining two witnesses on the point, it will have to be held that the wife had given knowledge about the alleged divorce between her and the first husband to him prior to the marriage. Here it is to be noted that, though the wife has not been able to prove the custom yet from the evidence regarding intimation about the said information to the husband prior to the marriage reveals that, even the husband was under the impression that the said divorce document which has been got executed between wife and first husband, was a correct document and then he did not question the legality of the same. Therefore, the knowledge of the husband regarding first marriage of the wife will have to be attributed to the date of his marriage, and therefore, the petition that has been filed by him for annulment of marriage on 01-03-2013 was beyond the period of limitation.

18. The period of limitation that is prescribed for filing such petition for declaration of divorce is one year and for that purpose the learned First Appellate Court has rightly considered Section 12 and 23 of the Hindu Marriage Act. The evidence on the point of knowledge adduced by the husband is absolutely not acceptable and it cannot prove that for the first time he came to know about the first marriage of wife on 02-02-2013 when the quarrel broke out between them. The learned Trial Court had not considered the said point in proper perspective and thus the petition filed by the husband for getting the marriage annulled is beyond the period of limitation.

Therefore, though the wife had failed to prove the custom and she had living spouse when her marriage with the present petitioner had taken place, yet the petition will have to be dismissed on the ground that it is beyond period of limitation.

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Second Appeal No. 124 of 2017, 

Decided On: 11.09.2019

 Sudarshan Vs.  Pallavi

Hon'ble Judges/Coram:

Vibha Kankanwadi, J.

Citation: AIR 2020(NOC) 69 Bom

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Supreme Court: No valid Marriage if there is only registered agreement of Marriage

In the agreement of marriage (Ex. P/1), it is only stated that both parties are of same caste and with the permission and consent of both of their fathers, they have entered into this agreement of marriage. This type of marriage is not recognized in law as Section 7 of the Act contemplates that the marriage can be solemnized in accordance with customary rites and ceremonies of either party thereto and where such rites and ceremonies include the Saptpadi, the marriage becomes complete and binding when the seventh step is taken.

The Plaintiff has not pleaded any custom permitting marriage within the prohibited degree nor there is any proof of solemnization of any marriage by customary ceremonies and rites, therefore, the Plaintiff will not be entitled to succeed only on the basis of alleged registration of an agreement of marriage. In the absence of customary ceremonies or the custom permitting marriage between the prohibited degree, the Plaintiff has no legal right to claim the share in the property only on the basis that some of the witnesses produced by her admitted that she married Hanumanthappa.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 3050 of 2010

Decided On: 15.11.2019

 Rathnamma  Vs.  Sujathamma 

Hon'ble Judges/Coram:

L. Nageswara Rao and Hemant Gupta, JJ.

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Leading Supreme Court Judgment on grant of permanent alimony

 In the present case, on the husband's petition, a decree declaring the second marriage as null and void has been granted. The learned counsel has argued that where the marriage is found to be null and void - meaning non-existent in eye of law or non est, the present respondent cannot lay a claim as wife for grant of permanent alimony or maintenance. We have critically examined the provisions of Section 25 in the light of conflicting decisions of the High Court cited before us. In our considered opinion, as has been held by this Court in Chand Dhawan's case (supra), the expression used in the opening part of Section 25 enabling the 'Court exercising jurisdiction under the Act' 'at the time of passing any decree or at any time subsequent thereto' to grant alimony or maintenance cannot be restricted only to, as contended, decree of judicial separation under Section 10 or divorce under Section 13. When the legislature has used such wide expression as 'at the time of passing of any decree,' it encompasses within the expression all kinds of decrees such as restitution of conjugal rights under Section 9, judicial separation under Section 10, declaring marriage as null and void under Section 11, annulment of marriage as voidable under Section 12 and Divorce under Section 13.

19. Learned counsel for the husband has argued that extending the benefit of Section 25 to even marriages which have been found null and void under Section 11 would be against the very object and purpose of the Act to ban and discourage bigamous marriages.

20. It is well known and recognized legal position that customary Hindu Law like Mohammedan Law permitted bigamous marriages which were prevalent in all Hindu families and more so in royal Hindu families. It is only after the Hindu Law was codified by enactments including the present Act that bar against bigamous marriages was created by Section 5(i) of the Act. Keeping into consideration the present state of the statutory Hindu Law, a bigamous marriage may be declared illegal being in contravention of the provisions of the Act but it cannot be said to be immoral so as to deny even the right of alimony or maintenance to a spouse financially weak and economically dependant. It is with the purpose of not rendering a financially dependant spouse destitute that Section 25 enables the court to award maintenance at the time of passing any type of decree resulting in breach in marriage relationship.

21. Section 25 is an enabling provision. It empowers the Court in a matrimonial case to consider facts, and circumstances of the spouse applying and decide whether or not to grant permanent alimony or maintenance.

IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 1774 and 1775 of 2001

Decided On: 13.12.2004

Rameshchandra Rampratapji Daga Vs. Rameshwari Rameshchandra Daga

Hon'ble Judges/Coram:

D.M. Dharmadhikari and H.K. Sema, JJ.

Citation: (2005) 2 Supreme Court Cases 33 : (AIR 2005 SC 422)

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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

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When test of due diligence is not applicable while deciding application of amendment of pleading?

 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.

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

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