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Mrs. Pramiti Bose vs Mr. Kabir Shankar Bose on 15 March, 2017

IN THE HIGH COURT OF JUDICATURE AT PATNA

CIVIL MISCELLANEOUS JURISDICTION No.300 of 2017
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Mrs. Pramiti Bose, Wife of Kabir Shankar Bose, Daughter of Sri Kalyan Banerjee,
resident of and residing at 37-C, Harish Chatterjee Street, P.S.-Kalighat, District-
kolkata-700026.

…. …. Petitioner.

Versus
Mr. Kabir Shankar Bose, Son of Sri Samir Bose, Resident of Y-14, Green Park,
New Delhi.

…. …. Respondent
===========================================================
Appearance :

For the Appellant/s : Mr. J.S. Arora, Sr. Adv.

For the Respondent/s : Mr. W. Rahman, Adv.

===========================================================
CORAM: HONOURABLE MR. JUSTICE V. NATH
ORAL JUDGMENT
Date: 15-03-2017

Heard Mr. J.S.Arora, learned senior counsel

appearing on behalf of the petitioner and Mr. W. Rahman, learned

counsel appearing for the respondents.

Questioning the legal sustainability of the

impugned order dated 09.02.2017 passed in Matrimonial Case No.43

of 2017 by the Principal Judge, Family Court, Patna allowing the

amendment of the pleadings as prayed on behalf of the husband

petitioner of the said case, the present application under Article 227 of

the Constitution of India has been filed by the wife-opposite party of

the said case.

With the consent of the parties, the present

application is being disposed of at this stage.
Patna High Court C.Misc. No.300 of 2017 dt.15-03-2017

2

As the factual matrix would undrape, the husband

as petitioner filed a petition (H.M.A. No. 834 of 2015) under Section

13(1)(i-a) of the Hindu Marriage Act 1955 before the Principal Judge,

Family Court, Patiala House, New Delhi, seeking divorce. The wife-

opposite party therein filed the Transfer Petition (Civil) No.1988/2015

before the Hon‟ble Supreme Court and by order dated 25.11.2016, the

Hon‟ble Court directed the transfer of the H.M.A. No. 834 of 2015 to

the file of the Principal Judge, Family Court, Patna with further

direction to dispose of the same by the end of March 2017 and to

intimate the factum of disposal to the registry of the Hon‟ble Supreme

Court. The Principal Judge, Family Court, Patna was also directed to

fix the date of hearing on a Saturday as well even if it was a clearance

day and if the Saturday was a Holiday then to fix the matter on

Wednesday or Thursday. After the transfer, the said case has been

numbered as Matrimonial Case No.43/2017 before the Principal

Judge, Family Court, Patna.

On 28.01.2017, a copy of the amendment petition

seeking amendments in the main petition of the matrimonial case,

apparently filed on 05.01.2016 by the husband-petitioner therein, was

served upon the wife-opposite party. The rejoinder was filed by the

wife-opposite party on 04.02.2017 and ultimately by the impugned

order dated 09.02.2017, after hearing the parties, the learned court
Patna High Court C.Misc. No.300 of 2017 dt.15-03-2017

3

below has allowed the prayer for amendments in the main petition of

the matrimonial case, as prayed.

At this juncture, it would be fruitful to briefly take

into notice the averments and the reliefs prayed by the husband-

petitioner in his petition seeking divorce (Annexure-P/1). It has been

averred therein that after three years of courtship, the petitioner and

the respondent were married on 18.11.2010. After medical assistance,

the wife conceived and gave birth to a male child on 14.04.2014. The

couple lived together till 20.04.2015 on which date it has been alleged

that the wife petitioner deserted the husband respondent. After

describing the conduct and behavior of the wife petitioner in detail in

the main petition (Annexure-P/1), the husband -respondent has

prayed for a decree of divorce under Section 13(1((i)(a) of the Hindu

Marriage Act, 1955 on the ground of cruelty .

By filing the amendment petition under Order 6

Rule 17 C.P.C., the husband-petitioner has sought to amend the prayer

clause of the main divorce petition and has also sought to incorporate

further statements of facts as paragraph-36(a) to 36(e) in the main

petition. It would be transparent from the amendment petition

(Annexure-P/3) that the husband-petitioner has sought to amend the

prayer clause seeking to insert the relief for a decree of annulment of

marriage under Section 12(1)(c) of the Hindu Marriage Act, 1955 on
Patna High Court C.Misc. No.300 of 2017 dt.15-03-2017

4

the ground of fraud as the main relief, and the relief for grant of a

decree of divorce under Section 13 (1)(i-a) of the Hindu Marriage Act,

1955 on the ground of cruelty has been sought to be made the

alternative relief in the matrimonial case. It further appears from the

amendment petition that the husband respondent by proposing to

insert paragraph 36(a) to 36(e) has sought to introduce the fact that the

wife-opposite party was suffering from a condition called Pelvic

Inflammatory Disease (PID) which is caused by a sexually transmitted

disease communicable in nature but the said fact was concealed by the

wife-opposite party from the husband-petitioner which he came to

know from the relatives of the wife-opposite party in the first week of

December 2015. The further facts relating to the surgery of the wife-

opposite party on 07.12.2012 in Kolkata, IVF treatment in Singapore

and obtaining the opinion from the doctor regarding possible infection

to the minor son through email and its reply on 17.12.2015 have also

been sought to be incorporated.

For convenience, the parties shall, hereinafter, be

referred as wife-petitioner and husband-respondent which is the

position held by them in the present application.

While criticizing the impugned order, Mr. Arora,

learned senior counsel appearing for the wife petitioner has submitted

that the learned court below has committed grave material irregularity
Patna High Court C.Misc. No.300 of 2017 dt.15-03-2017

5

in ignoring the materials on record including the statements of the

husband-respondent in the pleading as well as other documents which

amount to vital admissions of the husband-respondent disentitling him

from seeking the relief as prayed for by the amendment. It has been

contended that by the amendments which have been allowed by the

learned court below the main relief for grant of a decree of divorce on

ground of cruelty has been made an alternative relief and the relief for

a decree of annulment of marriage on ground of fraud has been made

the primary relief. After elaborately referring to the averments made

by the husband respondent in his main petition, the amendment

petition as well as the petition dated 17.06.2016 sent by the husband-

respondent to the police, it has been argued that the relief for

annulment of marriage as sought to be introduced by amendments, is

clearly barred by Section 12 (2) (a) of the Hindu Marriage Act, 1955.

It has been emphasized that the materials on record demonstrably

show that the husband-respondent was aware of the facts regarding

the disease(s) which the wife-petitioner had allegedly been suffering

as far back as in the year 2012 itself, and the relief for annulment of

marriage, at this stage and also in the manner, in this backdrop, is

clearly barred by the statute. It has also been contended that the relief

for annulment of marriage and the relief for divorce are mutually

inconsistent reliefs and could not have been legally allowed by the
Patna High Court C.Misc. No.300 of 2017 dt.15-03-2017

6

learned court below in the facts and circumstances of the case. It has

been asserted that a right has been conferred by the statute to the wife-

petitioner to be not sued for annulment of marriage under Section

12(1)(c) after lapse of one year after the alleged fraud had been

discovered or after living as husband and wife thereafter. It has been

finally submitted that the learned court below has passed the order in

perfunctory manner ignoring the settled principles of law governing

the adjudication of the prayer for the amendment which would change

the nature, scope and cause of action, and further ignoring the

statutory bar for such a relief against the wife petitioner.

Per contra, Mr.Rahman, learned counsel appearing

for the husband- respondent has emphatically tried to persuade this

Court that no illegality or material irregularity has been committed by

the court below in passing the impugned order as the amendments

which have been sought for being pre-trial amendments are to be

liberally allowed. It has been canvassed that soon after getting the

knowledge of the fraud played upon him by his wife in concealing the

fact that she was suffering from a sexually transmitted disease known

as Pelvic Inflammatory Disease (PID) Chlamydia, the husband-

petitioner of the matrimonial case immediately filed the petition for

amendment seeking annulment of the marriage on the said ground as

primary relief. It has also been contended that the amendments do not
Patna High Court C.Misc. No.300 of 2017 dt.15-03-2017

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introduce a new facts at all as the averments in the main petition

contain the foundation for such facts which is no surprise to the wife-

petitioner. It has been next contended that the merits of the relief or

the facts to be incorporated by amendment cannot be adjudicated at

the time of considering the prayer for amendment and the prayer for

amendment cannot be rejected for the said reason. It has also been

submitted that the bar of the relief by limitation or otherwise being a

mixed question of law and facts is to be considered at the time of

hearing of the case on the basis of the evidence adduced by the

parties. It has been finally argued that in the fitness of things it would

be just and proper to uphold the impugned order allowing the

amendments in question and direct the learned court below itself to

decide all the issues including the issue of bar of the relief by

limitation or otherwise at the time of hearing.

A number of decisions have been cited on behalf

of the parties in support of their rival contentions and the same shall

be appropriately taken into notice hereinafter.

After careful consideration of the rival

submissions on behalf of the parties as well as the materials on record,

it is pellucid that the husband respondent has filed the matrimonial

case HMA No. 834/2015 seeking a decree of divorce from the wife

petitioner on ground of cruelty. From the averments made in the main
Patna High Court C.Misc. No.300 of 2017 dt.15-03-2017

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petition (Annexure-P/1) it does not appear that any allegation of fraud

by concealing the fact of disease by the wife petitioner has been made.

Even in paragraph-6 of the main petition, which has been referred by

learned counsel for the husband-respondent in support of the

contention that the fraud or concealment of fact has been tangentially

pleaded, it does not appear that those averments are anywhere near to

the allegations/facts pertaining to fraud which are sought to be

incorporated in the main petition as paragraph 36(a) to 36 (e) by way

of amendment. To the contrary the averments made in paragraph 24 of

the main petition demonstrates the awareness of the husband-

respondent in 2012-13 on the basis of medical investigation that the

wife-petitioner was unable to conceive naturally and further that the

wife-petitioner was taken to Singapore where after the medical

intervention she could conceive. The averments in the main petition

further disclose that a male child was born on 14.04.2014 and the

parties resided together as husband and wife till the alleged desertion

on 20.04.2015 by the wife petitioner.

The statements in the amendment petition

(Annexure-P/3), however, introduce the case that the husband-

respondent for the first time came to know in the first week of

December 2015 from the relatives of the wife-petitioner that she was

suffering from a Sexually Transmitted disease (STD), Chlamydia and
Patna High Court C.Misc. No.300 of 2017 dt.15-03-2017

9

after search of the medical records, the husband-respondent came to

know that the wife petitioner suffered from Pelvic Inflammatory

Disease (PID). It has also been stated that the husband-respondent

apprehending infection to the minor son thereafter sought an opinion

from the doctor who treated the wife petitioner in Singapore and after

receiving email reply on 17.12.2015 the husband-respondent realized

that he had been fraudulently induced by the wife petitioner for

marriage concealing the said material fact.

Referring to the averments made in the

amendment petition (Annexure P/3) and the amendments sought to be

incorporated in the main petition, learned senior counsel for the wife-

petitioner has contended that these statements amount to admission by

the husband-respondent disclosing his awareness to the facts

including the information regarding the alleged diseases of the wife-

petitioner from much before. In this regard, strong reliance has been

placed upon the letter dated 17.06.2016 sent by the husband-

respondent to the police authorities requesting to register an FIR

immediately against the wife-petitioner. The said letter is annexed as

Annexure-A to the rejoinder (Annexure P/4) filed on behalf of the

wife-petitioner to the petition for amendment in the court below. It is

pertinent to note that the fact of writing the said letter to the police

and its contents have not been denied by the husband-respondent
Patna High Court C.Misc. No.300 of 2017 dt.15-03-2017

10

either in the court below or before this Court. In this letter to the

police the husband respondent has stated that the wife petitioner was

taken to Singapore for specialized treatment and during treatment, it

was discovered that the wife-petitioner harbored a serious disease

“Chlamydia” which was chronic in nature and the cause of the

barrenness and she also had “Liver Bed Adhesions.” It has

significantly been also stated therein that the husband-respondent

gave his consent to go ahead with the procedure of IVF treatment on

the basis of the categorical assurance of the IVF Doctor that the baby

would not contract “Chlamydia” or any other disease. From these

statements made in paragraph -2 and 3 of the letter to the police by the

husband-respondent, it is demonstrably clear that the husband-

respondent has accepted to have got the knowledge of the fact of the

alleged disease Chlamydia or the other disease of the wife-petitioner

during the IVF treatment at Singapore itself and it was only thereafter

that he gave his consent for such treatment on the assurance by the

doctor that the child to be born would not contract this disease

Chlamydia or any other disease . It is also evident from these

averments that after the birth of the child on 14.04.2014 the husband-

respondent and the wife-petitioner had lived together as husband and

wife and celebrated the first birthday of their child, and thereafter the

desertion by the wife-petitioner has been alleged to have taken place
Patna High Court C.Misc. No.300 of 2017 dt.15-03-2017

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on 20.04.2015.

Further, in the averments, sought to be

incorporated by amendment as paragraph-36(b), the assertions have

been made that the wife-petitioner had undergone a surgery on

07.12.2012 at Kolkata and the O.T. report of such surgery had opined

that the wife-petitioner had “Liver Bed Adhesion” due to PID. It is not

the case of the husband respondent that the surgery at Kolkata on

07.12.2012 was done without his knowledge or the O.T. report

mentioning specific diseases was also not in his knowledge. To the

contrary, the insurance claim settlement advice [(Annexure-P/1) (b)]

which is the one of the documents of the husband-respondent as

produced with his main petition of the matrimonial case, discloses that

the said claim settlement advice for the medical treatment at Kolkata

has been issued in the name of the husband-respondent as primary

member, and the final diagnosis has also been mentioned therein as

“other Female Pelvic Inflammatory Disease”

Though the husband-respondent in the petition for

amendment has tried to make out a case that it was only after getting

the knowledge of the disease of the wife-petitioner, he had sought

information from Dr. Charles of Singapore regarding the possibility of

infection to the minor son and the email reply from the said doctor

was received on 17.12.2015 mentioning that the OT report of
Patna High Court C.Misc. No.300 of 2017 dt.15-03-2017

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07.12.2012 showed Liver Bed Adhesions which is a characteritic of

prior Chlamydia infection. However, the said email reply on

17.12.2015 [(Annexure P/3(a)], remarkably does not contain any

opinion regarding the possible infection to the child though the query

was said to have been made only in that regard by the husband-

respondent. Further the said email reply refers only to the previous

medical reports of the year 2013 and surgery of the year 2012

showing absence of Chlamydia antigen indicating absence of active

disease at that time. But in any view of the matter, it is vivid enough

from the admitted documents on record that the plea of seeking query

by email in December 2015 by the husband- respondent with regard to

the possible infection to the minor son is itself not in consonance with

his own case as stated in his letter to the police (Annexure-A to

Annexure-P/4) that he had consented for the birth of a child after

knowing that the wife petitioner was suffering from the disease

Chlamydia and Liver Bed Adhesion and upon the assurance by the

doctor that the child to be born would not contract the said disease.

The aforesaid background facts lead to the

irresistible conclusion that the fact of wife petitioner suffering from

alleged disease was admittedly known to the husband-respondent who

even thereafter had consented for the birth of a child on the basis of

the medical assurance that the child would not be infected by the said
Patna High Court C.Misc. No.300 of 2017 dt.15-03-2017

13

diseases. The fact is also admitted that after the birth of the child on

14.04.2014 the husband-respondent and wife-petitioner lived together

as husband and wife till 20.04.2015. However, the respondent-

husband by way of amendment has sought to incorporate the relief of

annulment of marriage on ground of fraud under Section 12(1) (c) of

the Hindu Marriage Act 1955 as the main relief alleging that the fact

of diseases was concealed from him by the wife-petitioner and he

would not have proceeded to marry with wife-petitioner if these facts

would have been known to him.

The relevant provisions of Section 12(1) (c)

alongwith Section 12(2)(a) of the Hindu Marriage Act 1955, in the

present context, read as follows:

12. Voidable marriages.-(1) Any marriage solemnized,

whether before or after the commencement of this Act,

shall be voidable and may be annulled by a decree of

nullity on any of the following grounds, namely:

(a)XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

(b)XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

(c) that the consent of the petitioner, or where the

consent of the guardian in marriage of the petitioner

was required under Section 5 as it stood immediately

before the commencement of the Child Marriage
Patna High Court C.Misc. No.300 of 2017 dt.15-03-2017

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Restraint (Amendment) Act, 1978 (2 of 1978), the

consent of such guardian was obtained by force or by

fraud as to the nature of the ceremony or as to any

material fact of circumstance concerning the

respondent; or

(2) Notwithstanding anything contained in sub-section (1),

no petition for annulling a marriage-

(a) on the ground specified in clause (c) of sub section (1)

shall be entertained if-

(i) the petition is presented more than one year

after the force had ceased to operate or, as the case

may be , the fraud had been discovered; or

(ii) the petitioner has, with his or her full consent,

lived with the other party to the marriage as husband or

wife after the force had ceased to operate or, as the

case may be , the fraud had been discovered;

The postulates contained in the aforesaid

provisions clearly create a statutory bar against entertaining a petition

for annulling the marriage on the ground that the consent of the

petitioner was obtained by fraud, after one year when the fraud had

been discovered or if the parties to the marriage lived as husband and

wife after the discovery of the fraud. The fraud as alleged by the
Patna High Court C.Misc. No.300 of 2017 dt.15-03-2017

15

husband respondent, as evident from the proposed paragraph 36(a) to

36(e), in a nutshell, is that the wife-petitioner was suffering from the

diseases mentioned in those paragraphs but she concealed the said fact

from the husband respondent inducing him to marry her. However,

from the statements made by the husband respondent in his pleading

as well as in his other documents on record whose veracity has

significantly been not denied, it is manifest that the husband-

respondent had the knowledge of the said disease suffered by the

wife-petitioner when he gave his consent to the initiation of the

process for birth of a child only after having been medically assured

that the child to be born would not carry the infection from those

diseases. The said child took birth on 14.04.2014 and even thereafter

the husband-respondent and the wife-petitioner lived together as

husband and wife till alleged desertion on 20.04.2015. As these

statements are manifest from the pleadings and the documents of the

husband-respondent himself they no longer remain disputed questions

of facts. These facts are clearly admissions in pleadings and the

admitted document on record which are fully binding upon the

husband-respondent and constituting a waiver of proof as laid down

by the Apex Court in Nagindas Ramdas Vs. Dalpatram Echharam,

1974 (1) SCC 242. This factual backdrop therefore leaves no room

for doubt that the leave for amendments as prayed, if allowed, would
Patna High Court C.Misc. No.300 of 2017 dt.15-03-2017

16

take away the legal right which has accrued to the wife-petitioner by

virtue of Section 12 (2) (a) of the Hindu Marriage Act, 1955. The

learned court below while passing the impugned order has definitely

ignored this aspect of the matter while allowing the amendments

introducing the relief for annulment of marriage and incorporating the

facts of fraud in the main petition of the matrimonial case. This Court

thus holds that the proposed amendment for incorporating the relief of

annulment of marriage on ground of fraud cannot be allowed in view

of Section 12(2)(a) of Hindu Marriage Act in the facts and

circumstances of the case.

Examining this matter from another angle also, it

has been earlier discussed that the averments in the main petition do

not at all carry even an iota of allegation of fraud which is sought to

be introduced by the statements made in the proposed paragraph 36(a)

to 36(e). In the Municipal Corporation of Greater Mombay Vs.

Lala Pancham , AIR 1965 SC 1008, a five Judge Bench of the Apex

court has overturned the order allowing the amendment in the plaint

introducing the allegations of fraud for the first time , holding as

follows:

…………………………………………………

…………………………………………………

There is, however, another ground and a
Patna High Court C.Misc. No.300 of 2017 dt.15-03-2017

17

stronger one which impels us to hold that the

amendment should never have been allowed.

That ground is that the plaintiffs are now

making out a case of fraud for which there is

not the slightest basis in the plaint as it

originally stood. The mere use of the word mala

fide in the plaint cannot afford any basis for

permitting an amendment….”

In the present context it would be further fruitful

to take into notice the observations by a three Judge Bench of this

Court in A.K.Gupta Sons Vs. Damodar Valley Corporation , 1967

SC 96 wherein their lordships have clarified the meaning of the

expression „cause of action‟ while considering the prayer for

amendment in plaint. It has been spelt out as follows:

“7. It is not in dispute that at the date of the

application for amendment, a suit for a money

claim under the contract was barred. The

general rule, no doubt, is that a party is not

allowed by amendment to set up a new case or a

new cause of action particularly when a suit on

the new case or cause of action is barred:

Weldon v. Neale (19 QBD 394). But it is also
Patna High Court C.Misc. No.300 of 2017 dt.15-03-2017

18

well recognised that where the amendment does

not constitute the addition of a new cause of

action or raise a different case, but amounts to

no more than a different or additional approach

to the same facts, the amendment will be

allowed even after the expiry of the statutory

period of limitation….”.

“9. The expression “cause of action” in the

present context does not mean “every fact

which it is material to be proved to entitle the

plaintiff to succeed” as was said in Cooke v.

Gill [(1873) LR 8 CP 107, 116] in a different

context, for if it were so, no material fact could

ever be amended or added and, of course, no

one would want to change or add an

immaterial allegation by amendment. That

expression for the present purpose only means,

a new claim made on a new basis constituted by

new facts. Such a view was taken in Robinson v.

Unicos Property Corporation Ltd. [(1962) 2 All

ER 24] and it seems to us to be the only

possible view to take. Any other view would
Patna High Court C.Misc. No.300 of 2017 dt.15-03-2017

19

make the rule futile. The words “new case”

have been understood to mean “new set of

ideas”: Dornan v. J.W. Ellis Co. Ltd. [(1962)

1 All ER 303]. This also seems to us to be a

reasonable view to take. No amendment will be

allowed to introduce a new set of ideas to the

prejudice of any right acquired by any party by

lapse of time.”

“28……………………………………………………

………………………………………………………..

The Court has to decide the suit instituted

before it and with respect to the controversies

raised in it. It follows that the amendments to

be allowed relate to such matters which, due to

bad drafting of the plaint, could not be clearly

and precisely expressed, though the parties did

really intend to have those matters determined

by the Court. The object of the amendment of

the pleadings is to clarify the pleadings for

bringing into prominence the real controversy

between the parties and not for helping a party
Patna High Court C.Misc. No.300 of 2017 dt.15-03-2017

20

by making such amendments which be

beneficial to him in connection with some

dispute between the parties a dispute which has

not been really taken to the Court for decision

and which the parties did not really intend to be

decided in that suit. This seems to me to be the

real basis for an order of the Court in

connection with such amendments sought by a

party in its pleadings as would raise a claim

which has become time-barred…”

(emphasis supplied)

The above dictum has been succinctly reiterated in

B.K.Narayana Pillai Vs. Parameswaran Pillai, 2000 (1) SCC 712 as

follows:

“4……………………………………………………

………………………………………………………

All amendments of the pleadings should be

allowed which are necessary for determination

of the real controversies in the suit provided

the proposed amendment does not alter or

substitute a new cause of action on the basis of

which the original lis was raised or defence
Patna High Court C.Misc. No.300 of 2017 dt.15-03-2017

21

taken……….”

From the aforesaid authoritative pronouncement

of law, it is discernible that the amendment in the pleading seeking to

introduce new set of ideas and new cause of action alongwith entirely

new relief with definite deviation from the earlier pleading and the

relief cannot be allowed. In the present case, it is manifest that by the

proposed amendments the husband respondent has prayed to make the

relief for grant of a decree of annulment of marriage as the main relief

in the matrimonial case and the relief for grant of a decree of divorce

has been sought to be made the alternative relief. Apparently the

relief for annulment of marriage and the relief for a decree of divorce

are inconsistent reliefs the later presupposing a valid and subsisting

marriage. As held by the apex court in Sampatth Kumar Vs.

Ayyakannu and Anr ,2002 (7) SCC 559 and reiterated in Alkapuri

Cooperative Housing Society Ltd Vs. Jayantibhai Naginbhai, AIR

2009 SC 1948 the change of the basic structure of the suit by

amendment is impermissible. Evincibly, in the facts of the present

case, the nature, scope and cause of action of the matrimonial case as

instituted would be changed by the proposed amendments. None of

the authorities, relied upon on behalf of the husband-respondent hold

differently and therefore the conclusion is inevitable that the

amendments as prayed cannot be legally permitted.
Patna High Court C.Misc. No.300 of 2017 dt.15-03-2017

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The challenge to the legal sustainability of the

impugned order has also been resisted by learned counsel for the

husband-respondent proponing a contention that as the present

amendments have been sought in the matrimonial case at the pre-trial

stage when the amendments in the pleadings should be liberally

allowed, no interference is called for. In the first blush, this

submission is impressive. However, its potentiality apparently has

faded away after the order by the Hon‟ble Supreme Court in the

matter. From the first paragraph of the order of the Hon‟ble Supreme

Court dated 25.11.2016 (Annexure P/2) in Transfer Petition (civil)

1988/2015, it is evident that though the husband petitioner appeared

in the proceeding before the Hon‟ble Supreme Court but did not

disclose before the Hon‟ble Court the fact of pending petition for

amendment seeking to substantially change the nature of the

proceeding by praying mainly for a decree of annulment of marriage

and alternatively praying for a decree of divorce. The Hon‟ble

Supreme Court has, in fact, passed the order and direction taking the

proceeding to be under Section 13 of the Hindu Marriage Act seeking

divorce. The prayer for modification of the said order as made by the

husband respondent has also been dismissed by the apex court on

28.02.2017. It is not the submission on behalf of the husband

respondent before this Court that the husband respondent has at any
Patna High Court C.Misc. No.300 of 2017 dt.15-03-2017

23

stage informed the Hon‟ble Supreme Court regarding the proposed

change of the nature of the proceeding by seeking amendment. It has

been strongly contended on behalf of the wife petitioner that the

husband-responded is bent upon to avoid the determination of the

dispute within the time frame fixed by the Hon‟ble Supreme Court,

and the fact has been highlighted that another petition for amendment

has also been filed by the husband respondent on 18.02.2017 as well

as a petition under Section 26 of the Hindu Marriage Act. It has also

been submitted that even though by order dated 20.2.2017 while

issuing notice in the matter, this Court has only stayed the operation

of the impugned order dated 09.02.2017 and not the further

proceeding in the court below but the husband-respondent, who is

petitioner in the Matrimonial Case No.43 of 2017 in the court below,

has filed petition seeking adjournment on 04.03.2017 as well as

09.03.2017 even though the wife petitioner who is opposite party in

the said matrimonial case has already filed her written statement and

was personally present on those dates to participate in the proceeding

and has also insisted upon for examination of the husband-respondent

in the proceeding. It has also been pointed out on behalf of the wife-

petitioner that the husband-respondent has so far failed to examine

himself or any witness on his behalf in the proceeding even in face of

the order of the Hon‟ble Supreme Court fixing 31.03.2017 by which
Patna High Court C.Misc. No.300 of 2017 dt.15-03-2017

24

the proceeding is to be finally disposed of.

The learned counsel appearing for the husband

respondent however has refuted the assertions made on behalf of the

wife petitioner and has submitted that the respondent husband is

cooperating in the disposal of the proceeding in the court below in

accordance with law.

It is explicit from the order dated 25.11.2016

(Annexure-P/2) that the Hon‟ble Supreme Court, in no uncertain

terms, has directed for the disposal of the matrimonial case seeking

divorce (HMA No. 834 of 2015 now renumbered as Matrimonial Case

No. 43 of 2017) by the end of March 2017. The prayer for

modification of the said order, as prayed by the husband-respondent,

has also been rejected. The non-disclosure of the fact before the

Hon‟ble Supreme Court regarding the proposed amendments

changing the nature, scope and cause of action of the matrimonial

proceeding and the direction by the Hon‟ble Supreme Court to

dispose of the proceeding by the end of March 2017, when considered

together, dilute the substance of the submission that the amendments

of pleadings at pre-trial stage of the proceeding should be liberally

allowed as the attempt, in this manner, to overreach the order and

direction of the Hon‟ble Supreme Court cannot be ruled out.

For the aforesaid premised reasons and
Patna High Court C.Misc. No.300 of 2017 dt.15-03-2017

25

discussions, this Court holds that the learned court below has

committed illegality and material irregularity in allowing the prayer

for amendment by the husband respondent herein (petitioner in

matrimonial case no.43/2017) as made in his petition dated

05.01.2016.

This application is accordingly allowed and the

impugned order is quashed. The petition dated 05.01.2016 for

amendment is, accordingly, rejected. The learned court of Principal

Judge, Family Court, Patna is directed to dispose of the Matrimonial

Case No. 43/2017 in accordance with the direction of the Hon‟ble

Supreme Court.

Let this order be communicated to the court of

Principal Judge, Family Court, Patna immediately.

(V. Nath, J)
Nitesh/-

U

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