Bombay High Court

Vaishali Shrikant Arane vs Shrikant Pandir Arane on 7 December, 2021

Bench: Mangesh S. Patil

                                                                        930.WP.13402.21.odt


                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                            BENCH AT AURANGABAD

                            WRIT PETITION NO.13402 OF 2021

Vaishali Shrikant Arane,
Age : 28 years, Occ: Household,
R/o. Near Block - A/330, Kurla Camp,
Behind Kalimata Mandir, Ulhasnagar-4.                ... PETITIONER

         VERSUS

Shrikant Pandir Arane,
Age: 32 years, Occ: Business,
R/o- Opposite to Utsav Mangal Karyalaya,
Balaji Towers, Ward No.07,
Shrirampur, Tal. Shrirampur,
Dist. Ahmednagar.                                ...     RESPONDENT
                               ...
Advocate for Petitioner : Mr. Shaikh Mazhar A. Jahagirdar
Advocate for respondent : Mr. Rahul R. Karpe
                               ...

                                    CORAM   :   MANGESH S. PATIL, J.


                                    DATE    :   07.12.2021
JUDGMENT :

Heard. Rule. The learned advocate Mr. Karpe waives service

for the respondent. At the request of the parties, the matter is heard finally

at the stage of admission.

2. The petitioner who has filed a proceeding for annulment of

marriage styling it to be a petition under Section 12 of the Hindu Marriage

Act is aggrieved by the rejection of her application for amendment of the

petition (Exhibit-48) seeking to add a paragraph so as to insert the

averments in respect of impotency of the respondent husband.

3. After having heard both the sides at length and perusal of the

930.WP.13402.21.odt

the record and the proceeding, it transpires that the petitioner did file the

petition styling it to be one for annulment of marriage under Section 12. A

minute perusal of her petition would reveal that she made a strenuous

attempt to allege that the respondent was all the while unwilling to

consummate the marriage. She has narrated the episodes wherein he

denied to have sex. Conspicuously, though it could have been in her mind to

make up a ground under Section 12(1)(a) of the Hindu Marriage Act

seeking annulment on the ground of impotency of the respondent, the

petition clearly lacks specific and clear averments so as to make out that

ground.

4. Conspicuously, even the trial court seems to have framed the

issues oblivious of the nature of the proceeding. He has framed the issues in

vernacular which can be roughly translated as under :

Issue No.1 Whether the petitioner establishes that the marriage has not been consummated and she was treated with cruelty ?

Issue No.2 Whether the grounds made out in the petition are sufficient to annul the marriage ?

Issue No.3 Whether the petitioner is entitled to claim annulment of the marriage ?

A bare perusal of the issues would clearly demonstrate that the

learned Judge has framed the issues unmindful of the provision under which

the relief was being claimed by the petitioner.

5. There is no material to show that the petitioner had ever made

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any attempt to seek the issues to be recast.

6. Again, admittedly, the application for amendment was filed

when the matter was reserved for hearing final arguments.

7. The petitioner by way of amendment sought to add following

paragraph:

"13-A. That thereafter also with a hope that the behavior of respondent will improve on some day or the other, the petitioner kept on trying communicating and having sexual relationship with the respondent however; to the shocking of petitioner, the respondent rudely and clearly uttered that, he is not interested in women and has different choice of sex. He clearly told petitioner that, he is unable to establish sexual relationship with her as he is incapable of same. He said that, he is interested in males than females for satisfying sexual desire. Thus it reveled to the petitioner that, the respondent is sexually impotent and unable to consummate the marriage. However; on multiple occasions petitioner literally begged respondent to seek medical treatment for this cause with a hope to consummate the marriage however, the respondent shown utter disregard to this suggestion of petitioner and continued depriving her from fulfilling sexual obligation."

8. Perusal of the testimony of the petitioner would reveal that

during her cross-examination in paragraph No.2 she was specifically put the

questions and she admitted the facts that she had failed to clearly aver that

the respondent was impotent. She also admitted that the petition also did

not contain any averment about his incapability to have sex. She also

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admitted that there are no averments that because of his inability to

consummate the marriage that it was not consummated. It is therefore

quite apparent that after such replies perhaps she had become alert and has

tried to make amends to include the specific averment so as to make out the

ground for seeking annulment on the basis of his impotency as is

contemplated under Section 12(1)(a) which reads thus

12. Voidable marriages._(1) Any marriage solemnised, 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) that the marriage has not been consummated owing to the impotence of the respondent;

.......

9. The Supreme Court in catena of decisions has laid down

parameters to be borne in mind while considering the request for

amendment of the pleadings some of which have been culled down by it in

the case of Ravajeetu Builders and Developers Vs. Narayanaswamy and Sons

and Ors; (2009) 10 SCC 84, which has been referred to and relied upon

even by the trial court. Some of such parameters have been laid down in

paragraph No.67 and read thus:

"67. On critically analyzing both the English and Indian cases, some basic principles emerge which ought to be taken into consideration while allowing or rejecting the application for amendment.

(1) Whether the amendment sought is imperative for proper

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and effective adjudication of the case? (2) Whether the application for amendment is bona fide or mala fide?

(3) The amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money;

(4) Refusing amendment would in fact lead to injustice or lead to multiple litigation;

(5) Whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case ? and (6) As a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application."

10. True it is that the petitioner's case might fall under some of

these categories in as much as the proposed amendment would be necessary

for proper adjudication of the dispute and there are no apparent mala fides

on her part. However, as has been clarified by the Supreme Court these are

only illustrative parameters.

11. It has also been repeatedly laid down that the proposed

amendment should not have the tendency of causing any prejudice to the

other side which is nothing but to put the case in the Clause (3) of the above

instances.

12. As is mentioned above, it is during her cross-examination when

the petitioner admitted several clinching circumstances touching her claim

to seek annulment that the proposed amendment is sought to be made.