Bombay High Court
Bhupesh S/O Nanaji Moon vs Rajeshwari D/O Harihar Balvir on 21 September, 2017
Bench: S.C. Gupte
Judgment 1 wp172.17.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 172 OF 2017
Bhupesh S/o. Nanaji Moon,
aged about 38 years, Occupation : Service,
Resident of Plot No.60, Urvella Colony,
Near Sai Mandir, Wardha Road,
Nagpur.
.... PETITIONER.
// VERSUS //
Rajeshwari D/o. Harihar Balvir,
aged about 32 years, Occupation :School
Teacher, Resident of Plot No.19,
Rameshwari Chowk, Kashi Nagar,
Rameshwari, Nagpur.
.... RESPONDENT
.
___________________________________________________________________
Shri P.A.Abhyankar, Advocate for Petitioner.
Shri S.A.Choudhari, Advocate for Respondent.
___________________________________________________________________
CORAM : S.C.GUPTE, J.
DATED : SEPTEMBER 21, 2017.
ORAL JUDGMENT :
1. Heard learned counsel for the parties.
2. RULE. Rule made returnable forthwith. Taken up for hearing
by consent of the parties.
Judgment 2 wp172.17.odt
3. The present petition challenges an order passed by Family
Court at Nagpur on an application for amendment of the divorce petition
originally filed on the ground of cruelty so as to include a ground of
desertion, since during the pendency of the petition, the statutory period of
two years of desertion had already elapsed and the petitioner was in a
position to apply for divorce additionally on the ground of desertion. The
application is rejected on the ground that for the purpose of desertion as a
ground for divorce, two years' separation must have elapsed before the date
of institution of the petition and not during the pendency of the petition.
4. We are not considering here a case, where a divorce petition,
originally filed on the ground of separation, is sought to be made
maintainable on the ground that two years have actually elapsed during the
pendency of the petition. The petition, originally filed on the ground of
cruelty, was maintainable as such on the date when it was filed. Since
during the pendency of this petition, the statutory period of two years of
separation has also elapsed, the petitioner is in a position to apply for divorce
additionally on the ground of desertion. He can certainly do so by amending
his original petition. I am fortified in this view by a judgment of Allahabad
High Court in the case of Sanjiv Kumar Sinha Vs. State of U.P. & oth.,
reported in 2008(2) ADJ 584.
Judgment 3 wp172.17.odt
5. The impugned order passed by the Family Court, Nagpur, thus,
cannot be sustained. The order refuses to allow the amendment on a wholly
untenable ground and needs to be corrected in the exercise of writ
jurisdiction of this Court.
6. Accordingly, Rule is made absolute and the petition is disposed
of by quashing and setting aside the impugned order dated 19 th July, 2016
and allowing the amendment application Exh.30.
7. It is made clear that this amendment would relate back to the
date of filing of the application for amendment and not to the date of
presentation of the original petition. It is also made clear that all rights and
contentions of the parties on merits are kept open, to be decided at the
hearing of the matrimonial petition.
8. In the circumstances of the case, the parties shall bear their
own costs.
JUDGE
RRaut..
