Madhya Pradesh High Court
Smt. Vidhya Patidar vs Umesh Patidar on 4 March, 2024
Author: Pranay Verma
Bench: Pranay Verma
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE PRANAY VERMA
ON THE 4 th OF MARCH, 2024
MISC. PETITION No. 1024 of 2024
BETWEEN:-
SMT. VIDHYA PATIDAR W/O SHRI UMESH PATIDAR,
AGED ABOUT 39 YEARS, OCCUPATION: HOUSEHOLD
R/O: NEAR PANCHAMUKHI HANUMAN MANDIR
TARANA DISTT. UJJAIN (MADHYA PRADESH)
.....PETITIONER
(BY MS. MEGHA JAIN - ADVOCATE)
AND
UMESH PATIDAR S/O SHRI BABULAL JI PATIDAR, AGED
ABOUT 42 YEARS, OCCUPATION: ADVOCATE, R/O:
MARIMATA BAAG UMIYADHAM COLONY SHAJAPUR
DISTT. SHAJAPUR (MADHYA PRADESH)
.....RESPONDENT
This petition coming on for admission this day, th e court passed the
following:
ORDER
Heard on the question of admission.
By this petition preferred under Article 227 of the Constitution of India,
the petitioner/defendant has challenged the order dated 20.01.2024 passed by
the Family Court, whereby the application dated 19.04.2023 filed by the
respondent for taking on record fresh affidavit in support of the divorce
application has been allowed on the ground that the same is just and necessary
for adjudication of all the disputes between the parties.
02. The record indicates that the respondent has filed a petition under
Section 13(1) of the Hindu Marriage Act, before the Family Court against the
petitioner for grant of divorce. Alongwith the same an affidavit in support was
also filed. The petitioner filed her written statement contesting the divorce
petition in which an objection was also raised that the affidavit filed by the
respondent in support of the divorce petition is incorrect. Thereafter,
application was filed by respondent for permission to file a fresh affidavit which
has been allowed by the Family Court.
03. A perusal of the application filed by the respondent shows that
therein he specifically stated that due to typographical error the incorrect
affidavit has been filed and the same deserves to be substituted by a new
affidavit. The said fact has been accepted by the Family Court which has
permitted him to file a fresh affidavit. The pleadings in the divorce petition are
not in any manner being substituted by the new affidavit. An affidavit is even
otherwise always in support of the main petition for the purpose of verifying its
content and therein no fact which is not stated in the petition can be stated.
Thus, if the Family Court has permitted the respondents to substitute his
affidavit no illegality in the same can be found.
04. The judgments relied upon by the learned counsel for the petitioner in
cases of Batsiya and Others Vs. Ramgovind and Others (2022) 1 MPLJ
667 and Madan Singh Raghuvanshi Vs. Reena Raghuvanshi and Others,
2022 SCC Online MP 1839 were in respect of affidavit in evidence filed
under Order 18 Rule 4 of the CPC and it was held that the same cannot be
permitted to be withdrawn once filed. However, in the present case, it is the
affidavit in support of the divorce petition which has been permitted to be
substituted hence the judgments relied upon by the learned counsel for the
petitioner do not help her in any manner. Though no provision was mentioned
by the respondent in his application but the same would be wholly immaterial as
it is the substance and not the form which has to be considered.
05. Thus in view of the aforesaid, I do not find any error having been
committed by the Family Court in passing the impugned order.
The petition being devoid of merits is hereby dismissed.
(PRANAY VERMA)
JUDGE
Shilpa
