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
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Appearance :
For the Appellant/s : Mr. J.S. Arora, Sr. Adv.
For the Respondent/s : Mr. W. Rahman, Adv.
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
