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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
WRIT PETITION NO.3295 OF 2015
Shri Sunil Haridas Rade,
aged about 33 years, occupation :
labour, r/o Babupeth, near
Mahadeo Temple, Chandrapur,
Tahsil and District Chandrapur. ... Petitioner
- Versus -
Sou. Madhuri Sunil Rade,
aged 32 years, occupation : Service,
r/o near Hanuman Mandir, Tukkum
Police Ground, Chandrapur, Tahsil
and District Chandrapur. ... Respondent
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Ms. Kirti Satpute, Advocate for the petitioner.
Shri A.S. Ambatkar, Advocate for the respondent.
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CORAM : SMT. VASANTI A NAIK, J.
DATED : OCTOBER 10, 2016 ORAL JUDGMENT :
Rule. The rule is made returnable forthwith. Heard finally at the stage of admission with the consent of the learned Counsel for the parties.
By this writ petition, the petitioner-husband challenges the ::: Uploaded on - 15/10/2016 ::: Downloaded on - 16/10/2016 00:26:03 ::: 2 wp3295.15 orders of the Civil Judge, Senior Division, Chandrapur, dated 8/1/2015 and 22/4/2015 rejecting the application made by the petitioner for permission to amend the petition filed by him for a decree of divorce and also the review application.
The marriage between the parties was solemnized on 8/5/2007 and since the respondent - wife left the matrimonial home in the year 2010, the petitioner filed a petition against her for a decree of divorce on the ground of cruelty and desertion. During the pendency of the proceedings, after the petitioner had tendered his evidence on affidavit on 23/6/2014, the respondent lodged a first information report in the Police Station on 1/8/2014, levelling serious allegations against the petitioner and his family members, for an offence punishable under Section 498-A read with Section 34 of Indian Penal Code. Immediately thereafter, the petitioner filed an application for amendment of the petition so as to incorporate the subsequent event in respect of filing of the alleged false complaint by the respondent during the pendency of the proceedings. The trial Court rejected the application filed by the petitioner by the impugned order dated 8/1/2015. By the order dated 22/4/2015, the trial Court refused to review the order dated 8/1/2015 and rejected the application filed by the petitioner for reviewing the order rejecting the application for amendment of the petition.
Ms. Satpute, the learned Counsel for the petitioner, submits that the trial Court was not justified in rejecting the application made by ::: Uploaded on - 15/10/2016 ::: Downloaded on - 16/10/2016 00:26:03 ::: 3 wp3295.15 the petitioner for amendment of the petition. It is stated that the proposed amendment does not change the nature of the petition and it was necessary to bring the subsequent development on record to point out the cruelty on the part of the wife. It is stated that before the matter was referred to the Mediator to consider settlement between the parties, the respondent had lodged the first information report, levelling serious allegations against the petitioner and his family members in respect of the offence punishable under Section 498-A read with Section 34 of Indian Penal Code. It is stated that filing of the false first information report in the Police Station is an important subsequent event, which should have been brought on record. It is stated that the trial Court erroneously rejected the application solely on the ground that the petitioner had tendered the evidence on affidavit and further evidence of the petitioner was recorded in the matter.
Shri Ambatkar, the learned Counsel for the respondent, supports the orders of the trial Court. It is stated that after the petitioner had tendered his evidence on affidavit and further evidence in examination-in-chief, the petitioner could not have filed the application for amendment. It is stated that in the circumstances of the case, the trial Court has rightly rejected the application for amendment of the petition, so also the application for seeking the review of the order rejecting the amendment application.
On hearing the learned Counsel for the parties, it appears that ::: Uploaded on - 15/10/2016 ::: Downloaded on - 16/10/2016 00:26:03 ::: 4 wp3295.15 the trial Court has committed a serious error in rejecting the application filed by the petitioner for amendment of the petition. The petitioner had filed the petition for decree of divorce on the ground of cruelty and desertion. Since the respondent had filed the first information report in the Police Station levelling serious allegations against the petitioner and his family members, it was necessary for the petitioner to bring the subsequent development on record. According to the petitioner, filing of false complaint by the respondent tantamounts to cruelty. Thought it is stated on behalf of the respondent that the first information report was true and correct, this is an aspect, which would be considered by the trial Court while deciding the matter on merits. The trial Court should not have rejected the application for amendment of the petition solely on the ground that the petitioner had tendered his evidence on affidavit before the application for amendment was filed. If the respondent had lodged the report just a month after tendering of the evidence by the petitioner on affidavit, it was necessary for the petitioner to bring the subsequent event on record. The trial Court ought to have considered that the proposed amendment does not change the nature of the petition and the same was necessary for effectively deciding the controversy between the parties.
Hence, for the reasons aforesaid, the writ petition is allowed.
The impugned orders dated 8/1/2015 and 22/4/2015 are quashed and set aside. The application filed by the petitioner for amendment of the ::: Uploaded on - 15/10/2016 ::: Downloaded on - 16/10/2016 00:26:03 ::: 5 wp3295.15 Hindu Marriage Petition is allowed.
The rule is made absolute in the aforesaid terms with no order as to costs.
JUDGE khj ::: Uploaded on - 15/10/2016 ::: Downloaded on - 16/10/2016 00:26:03 :::