K.Sekar vs A.Mageshwari
2021 Latest Caselaw 11172 Mad

                                                           1

                             IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                DATED: 30.04.2021

                                                        Coram

                                  The Hon'ble Mr. Justice C.V.KARTHIKEYAN

                                            C.R.P. (PD) No.1007 of 2021
                                                        and
                                              C.M.P.No.8109 of 2021


                      K.Sekar                                  ..Petitioner/Petitioner/Petitioner

                                                          Vs

                      A.Mageshwari
                                                          ..Respondent/Respondent/Respondent

                            Civil Revision Petition filed under Article 227 of the Constitution of
                      India to set aside the fair and decreetal order dated 12.02.2021 in
                      I.A.No.206 of 2019 in H.M.O.P.No.119 of 2018 on the file of the
                      Principal Subordinate Court at Ponneri.


                                  For Petitioner               ..    Mr.Jeremiah Gregory John

                                  For Respondent               ..    No appearance




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                                                           2

                                                        ORDER

Heard the learned counsel for the petitioner.

2.I am not impressed with the arguments advanced by the learned

counsel for the petitioner. The revision petitioner is also the petitioner in

H.M.O.P.No.119 of 2018 which is now pending on the file of the

Subordinate Court, Ponneri. The revision petitioner / husband had filed

the said H.M.O.P.No.119 of 2018 seeking dissolution of the marriage on

the ground of nullity.

3.He claimed that there was no marriage at all. The parties went to

trial. The petitioner herein examined himself as PW-1 and he was also

cross-examined. Thereafter, basing on the fact that the respondent herein

had given a complaint to the All Women Police Station, Ennore, on

06.06.2018 and a report/letter had been received from the District Social

Welfare Protection Officer, Tiruvallur, on 24.07.2018, an application

was filed to amend the pleading in H.M.O.P.No.119 of 2018 seeking an

additional ground of cruelty.

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4.The said application came up for consideration before the

learned Subordinate Judge, Ponneri on 12.02.2021 and the learned Judge

dismissed the said application.

5.Mr.Jeremiah Gregory John, learned counsel for the petitioner

relied on the judgment in Deepali Vs. Pankaj Gupta reported in (2006)

144 PLR 449, wherein, a learned Single Judge of the Punjab and

Haryana High Court had stated that when pending a petition, further

relief of annulment of marriage under Section 12(1)(C) of the Hindu

Marriage Act, can be introduced. The application was filed because the

petitioner therein had changed his advocate and a new advocate came

into the picture and advised the petitioner that an additional ground can

be sought for seeking divorce. The learned Judge had thereafter however

examined the issues and permitted such amendment. The said ratio does

not apply to the facts of this case.

6.Here the Original Petition was filed on the ground of nullity of

the marriage. Thereafter, by way of an amendment, dissolution of

marriage is sought on the ground of cruelty.

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7.In the first instance, the petitioner herein should accept the

validity of the marriage. Only thereafter, can he seek for divorce on the

ground of cruelty. The petitioner having been cross-examined, had

thereafter filed the present application.

8.I concur with the entire reasonings given by the learned

Subordinate Judge, Ponneri, about the improbability of the relief which is

now sought when compared with the relief on which the Original Petition

was first filed. The learned Judge had also stated that the petitioner had

filed this application only to fill up the lacuna of the admissions that had

been made in the cross-examination. The petitioner will have to face the

admissions, he cannot go around and file an application for amendment.

9.Reliance had also been placed on a judgment of the Hon'ble

Division Bench of this Court in C.Rajamani Vs. C.Rathnabai reported in

2009 (4) CTC 213. The Hon'ble Division Bench had stated that it is the

discretion of the Judge who conducts the trial to decide whether to permit

amendment and stated though there was an embargo to permit

amendment under the provision of CPC subsequent to commencement of

trial, still a small window is given for discretion and the Hon'ble Division http://www.judis.nic.in

Bench therefore stated that such discretion can be used in appropriate

cases.

10.The facts in the present case are totally different. The petitioner

herein had filed an application seeking amendment on the basis of

admissions made by him during cross-examination and to fill up that

lacuna.

11.I am not impressed with the arguments advanced by the learned

counsel for the petitioner and I concur with the order passed in

I.A.No.206 of 2019 by the learned Subordinate Judge, Ponneri.

12.This Civil Revision Petition is dismissed. No order as to costs.

Consequently, the connected Civil Miscellaneous Petition is closed.

13.The petitioner herein is directed to participate in the trial

proceedings.

30.04.2021 Internet:Yes/No Index:Yes/No smv

To The Subordinate Court, Ponneri.

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C.V.KARTHIKEYAN,J.

smv

C.R.P. (PD) No.1007 of 2021

30.04.2021

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