Madras High Court
K.Madan @ Madan Prakash vs K.Kamali @ Kamalaveni on 20 October, 2021
C.R.P.(PD).No.4680 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 20.10.2021
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
C.R.P.(PD).No.4680 of 2017
and
C.M.P.Nos.22042 of 2017 & 1151 of 2018
K.Madan @ Madan Prakash .. Petitioner
Vs.
K.Kamali @ Kamalaveni .. Respondent
Prayer: This Civil Revision Petition is filed under Article 227 of the
Constitution of India, against the order dated 02.11.2017 made in
I.A.No.1514 of 2017 in H.M.O.P.No.707 of 2015 on the file of the Principal
Family Court, Chennai.
For Petitioner : Mr.M.Velmurugan
For Respondent : Mr.P.Parthiban
ORDER
(The matter is heard through “Video Conferencing/Hybrid Mode”.)
This Civil Revision Petition is filed against the order dated 02.11.2017
made in I.A.No.1514 of 2017 in H.M.O.P.No.707 of 2015 on the file of the
Principal Family Court, Chennai.
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C.R.P.(PD).No.4680 of 2017
2.The petitioner filed H.M.O.P.No.707 of 2014 against the respondent
for divorce on the ground of cruelty under Section 13 (1) (i-a) of Hindu
Marriage Act, 1955. According to petitioner, the respondent is of suspicious
nature and has made allegation that petitioner is having illicit relationship
with his own mother and sister. The respondent filed counter affidavit and is
contesting the case. Trial commenced. The petitioner examined himself as
P.W.1 and examined one Sundar, S/o. Duraikannu, the President of
Panchayat as P.W.2. The respondent also filed proof affidavit. When the O.P.
was posted for cross examination of respondent, the petitioner filed
I.A.No.744 of 2017 for a direction to the respondent to subject herself to
examination by an expert in Psychiatry or any other related science at Institute
of Mental Health, Medavakkam Tank Road, Kilpauk, Chennai–600
010, Tamil Nadu. The respondent filed counter affidavit and denied the
allegations made against her and objected for examining her by Psychiatrist.
The learned Judge by the order dated 27.04.2017 dismissed the said
I.A.No.744 of 2017.
3.Thereafter the petitioner filed the present I.A.No.1514 of 2017 on
04.07.2017 under Order VI Rule 17 read with Section 151 C.P.C. to permit
the petitioner to amend the petition by including Section 13(1)(iii). According
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C.R.P.(PD).No.4680 of 2017
to petitioner, from the beginning of marriage the respondent is behaving
abnormally. She used to shout at the petitioner and doubted him that he was
having illicit relationship with number of women including wife of her uncle
and her own sister Iswarya. The petitioner also suspects every Doctor who
treated her and make allegations that they gave wrong medicines that affected
her health. The petitioner wanted the respondent to consult a Psychiatric
Doctor, but she refused. The petitioner consulted a Psychiatrist Dr.Fernandez,
Home for Schizophernia, Mugalivakkam, Chennai, on 10.08.2013 and
informed the Doctor all the behaviour of the respondent. Dr.Fernandez sensed
the symptoms to be of personality disorder PPD (Paranoid Personality
Disorder), which may be the cause for the behaviour of the respondent. PPD
(Paranoid Personality Disorder) needs further diagnoses for confirmation and
requires continuous medication if confirmed. Since the respondent never listen
to the petitioner, neither counselling nor treatment was taken. In such
circumstances, the petitioner filed I.A.No.744 of 2017 for sending the
respondent to Medical examination by an expert in Psychiatry or other related
science at Institute of Mental Health, Medavakkam Tank Road, Kilpauk,
Chennai – 600 010, Tamil Nadu. The said I.A.No.744 of 2017 was dismissed
by the learned Judge by the order dated 27.04.2017, holding that petitioner
filed main O.P. for divorce on the ground of cruelty and not on the ground of
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C.R.P.(PD).No.4680 of 2017
mental illness of the respondent. The learned Judge further held that the
petitioner has not filed petition for divorce on the ground of mental condition
of the respondent and it is unnecessary to subject the respondent to
Psychiatric test. In view of the same, the petitioner has filed the present
I.A.No.1514 of 2017 to amend the prayer on the ground of cruelty and mental
illness instead of cruelty. The respondent filed counter affidavit in the said
I.A.No.1514 of 2017 and denied all the averments and contended that the
petitioner has not made the said allegations in the H.M.O.P. In 30 pages proof
affidavit filed by the petitioner also he has not made these allegations. The
petitioner has come out with the present I.A. only as he cannot prove the
cruelty as alleged by him in the H.M.O.P. and to drag on the proceedings. The
respondent further stated that the Family Court Judge is watching the
respondent for more than two years at the time of hearing and the respondent
never behaved in abnormal way. After dismissal of I.A.No.744 of 2017, the
present petition is filed and prayed for dismissal of I.A.No.1514 of 2017.
4.The learned Judge considering the averments in the petition in
H.M.O.P., affidavit and counter affidavit, dismissed the I.A., holding that
amendment of the pleadings after commencement of Trial can be ordered only
when a party seeking amendment proves that the amendment could not have
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C.R.P.(PD).No.4680 of 2017
been sought for inspite of due diligence and also the relief already sought for
and the relief now sought for by way of amendment are extreme opposite and
it could not be clubbed together.
5.Against the said order dated 02.11.2017 made in I.A.No.1514 of
2017, the petitioner has come out with the present Civil Revision Petition.
6.Heard the learned counsel appearing for the petitioner as well as the
learned counsel appearing for the respondent and perused the entire materials
on record.
7.From the materials on record, it is seen that the petitioner has filed
H.M.O.P. for divorce on the ground of cruelty by the respondent. The
petitioner has alleged that the respondent is making frivolous, false allegations
against the petitioner that he is having illicit relationship with his own mother
and sister. The petitioner has not made any allegation that the respondent is
suffering from mental disorder or she is having any Psychiatric problem in the
main H.M.O.P. The petition filed by the petitioner is only on the ground of
cruelty based on the averments made in the H.M.O.P. The petitioner
examined himself as P.W.1 and was cross examined. The petitioner also
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C.R.P.(PD).No.4680 of 2017
examined one Sundar, S/o. Duraikannu, the President of Panchayat as P.W.2.
Both P.W.1 and P.W.2 were cross examined by the counsel for respondent.
The petitioner without making any allegation earlier about the mental
condition of the respondent either in H.M.O.P. or in the proof affidavit, is not
entitled to the present relief sought for by way of amendment after
commencement of Trial.
8.As per Order VI Rule 17, an amendment after the commencement of
Trial normally will not be allowed or permitted. Only when the person seeking
amendment after commencement of Trial pleads and proves that inspite of
due diligence he could not file application for amendment before
commencement of Trial, the same can be considered. In the present case, the
petitioner has not alleged that inspite of his due diligence he could not have
filed the present I.A. for amendment. Further, it is to be taken note of the fact
that the petitioner states that he consulted Psychiatrist Dr.Fernandez, Home
for Schizophernia, Mugalivakkam, Chennai, who after considering the
information given by the petitioner about the behaviour of the respondent,
diagnosed that respondent is suffering from PPD (Paranoid Personality
Disorder). The petitioner further stated that the said Dr.Fernandez opined that
by examining the respondent only the same can be confirmed and treatment
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C.R.P.(PD).No.4680 of 2017
can be suggested. Even when the petitioner came to know about the mental
condition of the respondent as per the opinion of Doctor, did not file any
application for amendment of H.M.O.P. to include the relief of divorce on the
ground of cruelty and mental illness of the respondent. The petitioner has not
given any reason for not filing the application for amendment before
commencement of Trial, especially when the petitioner has filed detailed proof
affidavit and was cross examined elaborately. The petitioner also examined
one Sundar, S/o. Duraikannu, the President of Panchayat as P.W.2. and
counsel for respondent cross examined P.W.2. The respondent also filed proof
affidavit and was examined in chief. When the H.M.O.P. was posted for
evidence of respondent, the petitioner filed I.A.No.744 of 2017 for a direction
to refer the respondent to Medical examination by an expert in Psychiatry or
other related science at Institute of Mental Health, Medavakkam Tank Road,
Kilpauk, Chennai – 600 010, Tamil Nadu. The learned Judge dismissed the
said I.A. on 27.04.2017.
9.After three months of said dismissal, the petitioner has come out with
the present I.A.No.1514 of 2017. The petitioner has stated that due to
dismissal of I.A.No.744 of 2017, this petition for amendment is necessary. As
already stated, the petitioner has not given any reason for not including the
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C.R.P.(PD).No.4680 of 2017
said relief in the H.M.O.P. filed by him and for not filing the I.A. for
amendment before commencement of Trial. The petitioner has not stated in
the affidavit filed in support of the present petition that inspite of due
diligence he could not have filed the I.A. for amendment before
commencement of Trial. The Division Bench judgment of the Hon'ble Apex
Court reported in (2006) 4 SCC 385, (Rajesh Kumar Aggarwal and others
Vs. K.K.Modi and others), relied on by the learned counsel appearing for the
petitioner do not advance the case of the petitioner. In that case, the Hon'ble
Apex Court held that by amendment cause of action arose after the suit and
amendment did not change the basic structure of the suit. It is not the case of
the petitioner that respondent became mentally ill after he filed H.M.O.P.
Secondly, it is not the case of the petitioner in H.M.O.P. that respondent is
suffering from mental illness and that he is entitled to divorce on that ground
also. The petitioner without any pleading is seeking amendment by
introducing a new case that respondent is mentally ill. Such amendment
without pleading, that too after commencement of Trial cannot be allowed.
The learned Judge considered all the materials placed before him in proper
perspective and dismissed I.A.No.1514 of 2017 by giving cogent and valid
reason. There is no error or irregularity in the said order of the learned Judge
warranting interference by this Court.
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C.R.P.(PD).No.4680 of 2017
10.For the above reason, this Civil Revision Petition is dismissed.
H.M.O.P. is of the year 2014 and the learned Principal Family Judge,
Chennai, is directed to dispose of the said H.M.O.P. as expeditiously as
possible, in any event, within a period of three months from the date of receipt
of a copy of this order. Consequently, the connected Miscellaneous Petitions
are closed. No costs.
20.10.2021
krk
Index : Yes / No
Internet : Yes / No
To
The learned Principal Judge,
Principal Family Court,
Chennai.
http://www.judis.nic.in
C.R.P.(PD).No.4680 of 2017
V.M.VELUMANI, J.
krk
C.R.P.(PD).No.4680 of 2017
20.10.2021
http://www.judis.nic.in
