Smt. Amar Shingal vs Wg. Cdr. Pradeep Shingal
2000 Latest Caselaw 418 Del

JUDGMENT

Vijender Jain, J.

1. Aggrieved by the order passed by the Guardian Judge allowing the application of respondent under Order 6, Rule 17, CPC, the petitioner has filed the present revision petition. Mr. Bhaduri, learned Counsel for the petitioner has contended that the amendment sought for are neither necessary nor proper for adjudicating the dispute between the parties. Mr. Bhaduri has further contended that by the proposed amendments which have been allowed, the respondent wants to change the nature of the suit. He wants to withdraw the admissions made in the written statement. Mr. Bhaduri has further contended that, as a matter of fact, the application for amendment contains only paragraphs 4 to 9, but actually same have been sub-divided into various paragraphs making altogether 24 paragraphs. He has further contended that the amendment sought for are mala fide and the Trial Court erred in allowing the amendments. He has further contended that the amendment Have changed the nature of the admissions made in the written statement. In support of his contention, learned Counsel for the petitioner has cited Mahinder Singh v. Iqbal Kaur, 1995 RLR 469; Kanoria Petro Products v. Sheetla Agro, 1995 RLR (Note) 63; Dalip Singh (Prof.) v. Sant Singh and Ors., 1998 IV AD (Delhi) 691=74 (1998) DLT 208 and E.M. Singh v. M.T. Singh, AIR 1967 Mani.28.

2. There cannot be any dispute with the proposition of law enunciated in the authorities cited above. Every case and every averment has to be seen in the context of the pleadings of the parties and the nature of the averments. While dealing with this petition, it appears that the suit was filed under Guardianship Act claiming the custody of two minor children by the petitioner (mother). Original written statement was filed and in the said written statement, the defense as set up by the respondent was in paragraph 5. The respondent has taken the plea that it was respondent who filed a petition for divorce on the ground of adultery and cruelty. This is how paragraph No. 5 in the written statement goes :

"Para 5 is absolutely denied. All the accusations made by the petitioner against the respondent are specifically denied. There is not an iota of truth in it. It is, however, submitted that when the respondent confronted the petitioner about her illicit relationship with the fellow officer and her love letter to him the petitioner became hostile and left her matrimonial home on 9.6.1996 to Delhi and moreover the petitioner was not remorseful and took an unyielding and uncompromising stand, the respondent was left with no alternative but to file petition for divorce on the ground of adultery and cruelty. The petitioner use to rebuke and belittle the respondent in public. This became worse due to her excessive drinking habits. The respondent had endeavoured to be tolerant with the petitioner for the sake of his children and his family. The petitioner did not stop her misconduct; it is pertinent to mention here that the petitioner had been threatening the respondent by saying that he would be dealt with, when come to Delhi to pursue his divorce petition or any other petition filed by the petitioner against the respondent. It is also submitted that both the children were born in Banglore in 1987 and 1988, as the respondent was posted in Banglore at that time. In 1988 the respondent was transferred to Jorhat, the respondent along with his family went and stayed in Jorhat till 1999. Both the children did their pre-nursery school in Jorhat and in May, 1991, the respondent was transferred to Delhi, children went to Delhi with the respondent and were staying at his official resident at 10, Subroto Park, Delhi and studied in Air Force School, Delhi till March, 1996. The respondent was transferred to Banglore in April, 1995, children could not go with the respondent to Banglore as the family accommodation was not available to the respondent at that time. And moreover the petitioner insisted to stay in Delhi on the pretext that children could finish their academic session in New Delhi and in March, 1996 the entire family consists of respondent children and petitioner moved to Banglore Children got admission in Army Public School in Banglore, since then the children are staying and studying in Banglore with the respondent. The children had already completed one full academic session in school in Banglore. It is pertinent to mention here that the children had/have always lived with the respondent and moved with the respondent, whenever the respondent was transferred. It is also humbly submitted by the respondent that it is an afterthought of the petitioner by adding that the children were removed from Delhi in July, 1996. As the petitioner had already admitted in her reply to the application filed by the respondent under Order 7, Rule 10, CPC that they had shifted to Banglore in March, 1996. And moreover the petitioner had also admitted that she left Banglore on 9.6.1996, when she was confronted by the respondent on her illicit relationship with the fellow officer and her love letters."

3. To a specific plea taken by the respondent that the children were happy in the company of the petitioner paragraph 12 deals as follows :

"Para 12 is wrong and denied. Children are happy with the respondent and are doing very well in their career."

4. Paragraph 13 of the original written statement also takes the plea that the father of the petitioner was an auto-rickshaw driver. What has been stated in the application under Order 6, Rule 17 by the respondent is with regard to his and his family's background and with regard to the facts amplifying the illicit relationship of the petitioner outside the marriage which plea has been taken originally in the written statement, same cannot be termed as facts which change the nature of the suit or introduce a fresh cause of action.

5. I have also carefully gone through the contents of the application under Order 6, Rule 17. It deals with facts which deal with the welfare of the children. As the subject matter of the suit pertains to the custody of the children, it cannot be said that any new or fresh plea has been taken by the respondent. I am of the considered view that the amendment which has been allowed by the impugned order was fully justified in the facts and circumstances of the case. There is no merit in this petition.