Shaji.S vs Vijithramol V.R
2021 Latest Caselaw 15997 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
       THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
                                   &
        THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
  MONDAY, THE 2ND DAY OF AUGUST 2021 / 11TH SRAVANA, 1943
                      OP (FC) NO. 223 OF 2020
     AGAINST THE ORDER/JUDGMENT IN OP 10/2016 OF FAMILY
              COURT,TRIVANDRUM, THIRUVANANTHAPURAM
PETITIONER/S:

         SHAJI.S,
         AGED 32 YEARS
         S/O.SUNDER RAJ, RESIDING AT THEKKUMURIYIL HOUSE,
         KUMPLAMPOIKA P.O., PATHANAMTHITTA-689 661.

         BY ADVS.
         M.JAYAKRISHNAN
         SRI.R.ANOOP
         DR.K.P.SATHEESAN (SR.)


RESPONDENT/S:

         VIJITHRAMOL V.R
         AGED 28 YEARS
         D/O.VIJAYAN, KRIPA BHAVAN, THATTANVILAKOM,
         PERUMPAZHUTHOOR P.O., NEYYATTINKARA TALUK,
         THIRUVANANTHAPURAM.

         BY ADV SRI.LATHEESH SEBASTIAN


     THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON
02.08.2021,     THE   COURT   ON   THE   SAME   DAY   DELIVERED   THE
FOLLOWING:
                               -: 2 :-
OP(FC) NO.223/2020



                           JUDGMENT

A.Muhamed Mustaque, J.

The petitioner is the petitioner in a divorce petition before the Family Court, Thiruvananthapuram. The petitioner is the husband and the respondent is the wife. The petitioner filed the petition for divorce on the ground of cruelty as referrable under the Divorce Act, 1869. The original pleadings would disclose that the petitioner only attributed mental cruelty as reflected from paragraphs 4 and 5. Thereafter, the petitioner filed a petition to incorporate certain other details by way of an amendment.

2. The proposed amendment would show that the petitioner wants to incorporate certain allegations constituting both physical and mental cruelty. The proposed amendment includes allegations of false complaint before the Police, Valiyathura Police Station. The Family Court dismissed the application by a very elaborate order. The main reason for dismissal was that the petitioner had enough opportunity to incorporate the amendment at earlier stage and he came up with the

OP(FC) NO.223/2020

application only after three years of filing the petition. In the matter of amendment, the court will have to adopt a practical approach. In the petition for divorce, incorporation of the allegation will not cause any prejudice to any of the parties as such amendment would not divest any defence of the respondent. The parties will have an opportunity to defend the case by raising additional written statement as well as through the evidence. The court will have to appreciate both pleadings and evidence while considering the prayers for divorce. Merely for the reason that the delay is occurred, that shall not result in dismissing the petition for amendment. We, therefore, find the impugned order is unsustainable. Accordingly, we allow this original petition. The amendment petition is allowed. The Family Court shall give sufficient opportunity to the parties to raise additional written statement. No order as to costs.

Sd/- A. Muhamed Mustaque, Judge.

Sd/-Dr. Kauser Edappagath ln/ani

/true copy/

OP(FC) NO.223/2020

APPENDIX OF OP (FC) 223/2020

PETITIONER EXHIBITS

EXHIBIT P1 A TRUE COPY OF THE ORIGINAL PETITION IN O.P.NO.10/2016.

EXHIBIT P2 A TRUE COPY OF THE JUDGMENT DATED 20.05.2019 IN O.P.(FC)259/2019 ON THE FILES OF THIS HONOURABLE COURT.

EXHIBIT P3 A TRUE COPY OF I.A.NO.2751/2019 IN O.P.NO.635/2015 ON THE FILES OF THE FAMILY COURT, THIRUVANANTHAPURAM.

EXHIBIT P4 A TRUE COPY OF I.A.NO.2752/2019 IN O.P.NO.10/2016 ON THE FILES OF THE FAMILY COURT, THIRUVANANTHAPURAM.

EXHIBIT P5 A TRUE COPY OF THE ORDER DATED 25.10.2019 IN I.A.NO.2751/2019 IN O.P.NO.635/2015 ON THE FILES OF THE FAMILY COURT, THIRUVANANTHAPURAM.

EXHIBIT P5 A TRUE COPY OF THE ORDER DATED 25.10.2019 IN I.A.NO.2751/2019 IN O.P.NO.635/2015 ON THE FILES OF THE FAMILY COURT, THIRUVANANTHAPURAM.

EXHIBIT P7 A TRUE COPY OF THE 'B' DAIRY IN O.P.NO.10/2016 ON THE FILES OF THE FAMILY COURT, THIRUVANANTHAPURAM.

EXHIBIT P8 A TRUE COPY OF THE ORDER DATED 04.02.2020 IN I.A.NO.2475/2018 IN O.P.NO.10/2016 ON THE FILES OF FAMILY COURT, THIRUVANANTHAPURAM.

RESPONDENT EXHIBITS

EXHIBIT R1(a) True copy of the objection to Exhibit P4 petition dtd 05/09/2019.

EXHIBIT R1(b) English Translation of Exhibit R1(a) objection.