Mohan Narayan Hande vs Smt. Sarojini W/O Mohan Hande
2017 Latest Caselaw 3836 Bom

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             IN THE HIGH COURT OF JUDICATURE AT
                          BOMBAY,

                         NAGPUR BENCH, NAGPUR


                  WRIT PETITION NO. 2236 OF 2016

                        Mohan Narayan Hande,
                        Aged about 56 years,
                        Occ. Nil.,
                        R/o. D-3, Rashtrarpan Nagar,
                        Dighi Road, Bhosari,
                        Pune 411 039
                        Presently r/o. Goregaon Bk.
                        Post. Goregaon Khurd,
                        Tq. and Dist. Akola         ...APPELLANT


                        // VERSUS //


                        Smt. Sarojini w/o. Mohan Hande,
                        Aged 41 yrs.
                        Occ. Housewife,
                        R/o. c/o.Uttamrao Sadashiv
                        Shegokar,
                        Near Amdapur Naka Khamgaon,
                        Tq. Khamgaon,
                        Dist. Buldhana          ..RESPONDENT

           -=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
              Mr.Abhay Bhide, Advocate for Appellant
              Mr. Amit Bhate, Advocate for Respondent
            -=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-=-=-=-




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                                CORAM:     KUM. INDIRA JAIN, J.

DATE : JUNE 30,2017.

ORAL JUDGMENT:

Rule. Rule made returnable forthwith. Heard

finally with the consent of learned counsel for the

parties.

2. The challenge in petition is to the order dated

13.1.2016 passed by the learned Civil Judge Senior

Division, Khamgaon, Dist. Buldhana below Exh. 94

in H.M.P. No. 2/2007, thereby rejecting an

application for amendment moved by the husband

under Order VI Rule 17 Code of Civil Procedure.

3. The facts giving rise to the petition may be

stated in nutshell as under:

Respondent / wife filed an application for

judicial separation against the petitioner. Petitioner

appeared before the Trial Court and filed his written

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statement. He admitted the relationship as of

husband and wife.

On 4.7.2015, P.W. 2 father of respondent was

cross examined. During cross examination, it was

revealed that his daughter's first marriage was

dissolved by divorce. The witness initially stated

that dissolution of first marriage was by decree of

divorce passed by the Court. Then he stated that

divorce deed was registered in the office of Sub-

Registrar and decree was not passed by the Court.

In view of these admissions, elicited in the cross

examination of P.W. 2, petitioner filed an application

for amendment in the written statement. The said

application was rejected by the Trial Court on two

grounds:

(i) The proposed amendment changes the nature

of defence raised by the husband in the

written statement and

(ii) Since the trial has commenced provisions of

Order VI Rule 17 would not apply.

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It is this order of rejection which is the subject

matter of present petition.

4. Heard Shri Bhide learned counsel for petitioner

and Shri Bhate, learned counsel for respondent.

With the assistance of the learned counsel for

parties, this Court has gone through the impugned

order. It is not in dispute that proceedings under

Section 10 of the Hindu Marriage Act came to be

filed by wife for judicial separation. Till 4.7.2015,

petitioner / husband was not aware of the first

marriage of wife / respondent. In view of the facts

admitted by the father in cross examination,

petitioner filed an application for amendment. The

proposed amendment relates to subsequent

development and based on the facts elicited in cross

examination of P.W.2. In such an eventuality, no

question of change in the nature of defence would

arise, as petitioner was not aware of the fact of first

marriage of the respondent.

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5. So far as discretion under Order VI Rule 17 of

the Code of Civil Procedure is concerned, needless

to state that it has to be sparingly exercised.

Admittedly, trial has commenced and petition is for

evidence before the Trial Court. The whole purpose

of amendment is to decide the controversy between

the parties effectively. The subsequent development

in the case on hand had taken place only at the

stage of cross examination of P.W.2.

6. In the above situation, this Court finds that

provisions under Order VI Rule 17 of the Code would

not create any bar and proposed amendment being

essential to decide the dispute between the parties

can be allowed. Hence, the following order:

(i) Writ petition No. 2236 of 2016 is allowed

in terms of prayer clauses 1 & 2.

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               (ii)          Petitioner shall carry out the amendment

               within two weeks.

               (iii)         Parties to appear before the Trial Court

               on 12.7.2017.

               (iv)          Trial Court to proceed in accordance with

               the law.

               (v)           Rule is made absolute, in above terms.

               (vi)               No Costs.

                          

                                              (KUM.INDIRA JAIN, J.)



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