Bombay High Court
Shri. Sunil Haridas Rade vs Sou. Madhuri Sunil Rade on 10 October, 2016
Bench: V.A. Naik
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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
-----------------
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
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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
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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
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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
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Hindu Marriage Petition is allowed.
The rule is made absolute in the aforesaid terms with no order
as to costs.
JUDGE
khj
