Saroj Kumar Behera vs Debajani Arka @ Behera .... Opposite ...
2025 Latest Caselaw 4594 Ori

Orissa High Court

Saroj Kumar Behera vs Debajani Arka @ Behera .... Opposite ... on 4 March, 2025

Author: G. Satapathy

Bench: G. Satapathy

     IN THE HIGH COURT OF ORISSA AT CUTTACK
               W.P.(C) No.33436 of 2021

  (In the matter of an application under Articles-226 & 227
  of the Constitution of India)

   Saroj Kumar Behera                        ....            Petitioner
                         -versus-
   Debajani Arka @ Behera         ....                  Opposite Party


   For Petitioner        :    Mr. S. Udgata, Advocate

   For Opp. Party        : None



       CORAM:
                   JUSTICE G. SATAPATHY

    DATE OF HEARING & JUDGMENT:04.03.2025(ORAL)


G. Satapathy, J.

1. The Petitioner who is the husband of the

OP, by means of this writ petition has invoked the

extra ordinary writ jurisdiction of this Court under

Articles 226 & 227 of the Constitution of India praying

to quash the impugned order dated 25.02.2021

passed by the learned Judge, Family Court,

Sambalpur in C.P. No.13 of 2021 under Annexure-4.

By Annexure-4, the learned Judge,

Family Court has rejected the petition for amendment

as filed under Order-VI, Rule-17 of the Code of Civil

Procedure, 1908 (In Short "CPC") by the writ

petitioner.

2. Heard, Mr. Sanjeev Udgata, learned

counsel for the Petitioner and perused the record, but

none appears for the OP despite being duly noticed.

In the course of hearing, Mr. Udgata, learned counsel

for the Petitioner, however, submits that unless the

amendment is allowed, the Petitioner would be highly

prejudiced in putting-forth his plea before the

concerned Court and there is absolutely no Bar for a

Court to entertain amendment application after

commencement of the hearing, however, the writ

Petitioner has filed such petition before filing of the

written statement by the OP. In support of his

contentions, Mr. Udgata relies upon the following

decisions:- (i) Sampath Kumar Vrs. Ayyakannu

and another; AIR (2002) SC 3369, (ii) Sunanda

Kar alias Ratha Vrs. Sudip Ratha;2006 (1) CLR

257 (iii) Rajesh Kumar Aggarwal and others

Vrs. K.K. Modi and others; AIR (2006) SC 1647

and (iv) Bondar Singh and others Vrs. Nihal

Singh and others; AIR (2003) SC 190.

3. After having considered the submission

as advanced for the Petitioner, since the Petitioner

prays to allow him to amend his petition under the

Guardians and Wards Act, 1890 (In Short "the Act")

in the nature of plaint, for clarity and proper

adjudication, the proposed amendments, which are

stated in para 2(n) to 2(y) of the amendment

petition, are extracted as under:-

"2(n):-That, the respondent has taken away the two minor children discontinuing their studies from Saint Lawrence Kinder garden school, Tentuloi-759128 with intent to get maintenance for the two children of Rs 20,000/- per month to each; Rs 15,00,000/- and damage, Rs 5000/- per month for separate accommodation for herself and two children at Kuchinda etc in order to keep her widowed mother with them comfortably. The respondent and her mother are also addicts to alcohol requiring wine daily. She also intended to purchase a

high quality car for use with her paramour Biju Sahu. She is also regularly making cohabitation with her paramour.

The respondent has no intention to keep Swastika with her as she misbehaved with the respondent and her paramour and she also considers her daughter as disturbance for her and her paramour during their sexual acts which they were carrying out regularly in the residence of respondent at Kuchinda in her parental house as well as in the house of her paramour in village Saida which is near Kuchinda, much prior to leaving the petitioner for ever since 01.01.2016 with preplan to marry/living in relation for ever with her paramour Biju Sahu which is also in the knowledge of the mother of the respondent. The respondent also considers the daughter as disturbance to the son Satyajit.

2(o) That, the paramour of the respondent has transmitted ugly caricaturist photos of daughter Swastika and Satyajit to respondent which shows the insensitive attitude of the respondent towards the children and this also caused huge mental agony to the petitioner being the father of the children.

2(p) That, the daughter Swastika is being referred as MENTAL (mad person) in the conversations of the respondent and her paramour.

2(q) That, the respondent and her paramour Biju Sahu desired to have a third children of their own apart of the two children of the petitioner.

2(r) That, the respondent also intended to send the daughter to Kesaibahal Hostel in order to remove the disturbance from her house. She is also ready to go to any extent to fight with her husband as she presupposes that the petitioner would obstruct her from doing so.

2(s) That, the respondent wants to linger this proceeding intentionally as she believes that her daughter would speak against her and her paramour if she (daughter) goes to the petitioner. Further, the paramour has also assured the respondent that they will try to keep the daughter away from the petitioner for a longer time so that the petitioner will fade away from the memory of the daughter as the daughter does not accept the paramour as father. 2(t) That, the paramour has stated that the son of the petitioner has accepted him as father.

2(u) That, the paramour has stated to the respondent that he has no interest upon the daughter; he has also stated to the respondent that the daughter is following and avoiding him to which the respondent replied that she will send her to hostel; this has made the petitioner fearful about any untoward treatment to his daughter by the paramour and the respondent.

2(v) That, the paramour and the respondent has accepted each other as husband and wife.

2(w) That, the paramour has also stated to the respondent that the son Satyajit has disturbed him while he was involved in sexual act with the respondent. 2(x) That, the respondent has also stated to her paramour that after covid 19 is over

she will send the daughter to hostel as she is incapable to maintain two children together and her job.

2(y) That, in Dec 2020, the respondent was pregnant with the paramour and has also done abortion by applying tablets in the advice of Dr. Dora. It is, therefore, prayed that this Hon'ble Court may be pleased to allow para 2(n) to 2(y) to be added in this proceeding for just decision of this case; for this act of kindness the petitioner shall duty bound to ever pray."

4. Before embarking upon the claim of the

writ Petitioner, this Court is quite in agreement with

the principles laid down by the Courts in the decisions

relied on by the writ Petitioner. Accordingly, in

Sampath Kumar (Supra), the Apex Court has held

that Order-VI Rule-17 of the CPC confers jurisdiction

on the Court to allow either party to alter or amend

his pleadings at any stage of the proceeding and on

such terms as may be just. Such amendments as are

directed towards putting-forth and seeking

determination of the real questions in controversy

between the parties shall be permitted to be made. It

is further held therein that pre trial amendments are

allowed more liberally than those which are sought to

be made after commencement of the trial or after

conclusion thereof. In Sunanda Kar alias Ratha

(supra), this Court has held that the facts sought to

be incorporated by way of amendment relate to the

allegations of cruelty, which had taken place after

filing the suit and the allegation being subsequent

events can be incorporated in the petition. In Rajesh

Kumar Aggarwal(supra), the Apex Court has held

that merits of the amendments sought to be

incorporated by way of amendment are not to be

adjudged at the stage of allowing the prayer for

amendment. Law is also equally well settled in

Bondar Singh (supra) that in the absence of a plea,

no amount of evidence led in relation thereto can be

looked into. A careful reference to the decision

referred to in Sampath Kumar (Supra) makes it

ample clear that the amendments which are sought

for must be relevant to determine the real question in

controversy between the parties may be allowed. A

bare perusal of the provisions of Order-VI Rule-17 of

the CPC which provides for amendment of pleadings

makes it very clear that allowing the application for

amendment is the discretion of the Court, but such

discretion has to be exercised carefully and diligently,

but not arbitrarily or capriciously. The amendments

which are necessary and just for the purpose of real

adjudication of the dispute between the parties

should not be disallowed merely on technical

grounds. Law is also well settled that amendments of

pleadings can be allowed even after commencement

of hearing and even at the appellate stage, but the

same must be necessary and for just decision of the

case.

5. Looking at the amendments sought for

by the petitioner, this Court also considers it

appropriate to remind itself to the provision of Order-

VI Rule-16 of the CPC which provides for striking out

pleadings and the said provision prescribes that the

Court may at any stage of the proceedings order to

be struck out or amended any matter in any pleading

(a) which may be unnecessary, scandalous,

frivolous, vexatious or (b) which may tend to

prejudice, embarrass, delay the fair trial of the suit

or (c) which is otherwise an abuse of process of the

Court. A casual look to the proposed amendments, it

appears that the Petitioner by way of amendment

wants to make certain allegations against the OP-wife

with regard to her chastity and character. Further,

the proposed amendments sought to be incorporated

also reveal about the allegations against the OP-wife

living an adulterous life, but without impleading the

person with whom the OP is alleged to be living in

adultery. On a close scrutiny of the prayer of the writ

Petitioner in the proceeding before the learned trial

Court under the Act seeks for a direction to the

Respondent (OP) to produce the two children before

the Court for interrogation and conciliation and to

pass orders thereafter. In essence the application by

the Petitioner in the proceeding before the learned

Judge, Family Court is for custody and welfare of the

children. The learned trial Court by the impugned

order has rightly observed that since the proceeding

before it is under the Act, the paramount

consideration is the welfare of the children, but the

Petitioner by way of an amendment intends to impute

the personal life and character of the OP-wife which is

not necessary and the same appears to be

scandalous and prejudicial to the OP-wife in a

proceeding for custody matter. Additionally, it is also

informed by the learned counsel for the Petitioner

that the matter is right now posted for argument.

6. In view of the aforesaid facts and

circumstances and on a conspectus of the discussion

made hereinabove vis-à-vis the claim of the

Petitioner and the original proceeding being filed for

the custody of the children, this Court does not find

any justification to allow the writ petition permitting

the petitioner to make amendments to his petition

seeking custody of the children in essence.

7. In the result, the writ petition being

devoid of merit stands dismissed.

(G. Satapathy) Judge

Orissa High Court, Cuttack, Dated the 4th March, 2025/Priyajit

Location: HIGH COURT OF ORISSA