Pankaj Kumar Paswan vs Savita Kumari
2023 Latest Caselaw 798 Patna

    IN THE HIGH COURT OF JUDICATURE AT PATNA
     CIVIL MISCELLANEOUS JURISDICTION No.1103 of 2018
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Pankaj Kumar Paswan, son of Gaurichand Paswan, resident of village - Hasanpur Kirat, P.O. Muktapur, P.S. and Anchal - Kalyanpur, District Samastipur.

... ... Petitioner/s Versus Savita Kumari, wife of Sri Pankaj Kumar Paswan, Daughter of Sri Daun Paswan resident of village - Hasanpur Kirat, P.O. Muktapur, P.S. and Anchal - Kalyanpur, District Samastipur at present residing at Village P.O. Sahpur Maricha, P.S. Maniyari, District Muzaffarpur.

... ... Respondent/s ====================================================== Appearance :

For the Petitioner/s : Mr.Rajeev Ranjan, Advocate For the Respondent/s : Mr.Yugal Kishore, Advocate Ms. Rupa Kumari, Advocate ====================================================== CORAM: HONOURABLE MR. JUSTICE SUNIL DUTTA MISHRA ORAL JUDGMENT Date : 17-02-2023

Heard learned counsel for the parties.

2. This Application has been filed against the order

dated 05.06.2018 passed by the Court of learned Principal

Judge, Family Court, Muzaffarpur in Matrimonial Case no.

143/2009 by which the amendment petition dated 16.07.2016

filed on behalf of petitioner has been rejected.

3. The facts, in brief, are that the petitioner filed a

Matrimonial Suit No. 143 of 2009 on 21.05.2009 in the Court of

learned Principal Judge, Family Court, Muzaffarpur against his

wife/respondent herein for divorce under Section 13 of the

Hindu Marriage Act, 1955 mainly on the ground of adultery.

4. In the petition, it is stated that the marriage was Patna High Court C.Misc. No.1103 of 2018 dt.17-02-2023

solemnized with the respondent on 19.05.2008 as per the Hindu

rites and rituals and after marriage, the petitioner and respondent

started living together at place of applicant but they lived

together only four days and bidagari was performed. It is

alleged that on 05.11.2008 the applicant heard rumor in the

village that respondent was pregnant and has given birth to a

male child within 6 months of the marriage. It is alleged that

respondent-wife was leading adulterous life before the

solemnization of the marriage and became pregnant. Earlier the

petitioner had filed Matrimonial Suit No. 307/2008 within one

year of marriage with leave application which was rejected and

suit was dismissed. Then after completion of one year from the

date of marriage, the instant divorce case has been filed. The

divorce petition was amended later on as per order dated

27.05.2013 incorporating the fact that the respondent has filed

dowry-torture case against the petitioner and his parents who

were taken into custody for a long time.

5. In written statement, it is stated that respondent

lived with the petitioner at his house for five months and due to

consummation of marriage, the respondent became pregnant but

she was tortured for dowry and had given birth to an unmatured

child due to assault.

Patna High Court C.Misc. No.1103 of 2018 dt.17-02-2023

6. A petition dated 03.06.2016 filed by the respondent

that the divorce petition is not maintainable on the ground that

there is no provision under section 13 of the Hindu Marriage

Act to get a decree of divorce on the ground that wife was guilty

of adultery before the marriage. The Court vide order dated

12.03.2018 rejected the said petition vide order dated

12.03.2018 on the ground that the case is already admitted.

7. An application dated 16.07.2016 filed by the

petitioner in the trial Court for amending the petition with

prayer to insert Sections 11 and 12 of the Hindu Marriage Act

instead of Section 13 of the Hindu Marriage Act and also to

amend portion (a) of the relief that "to pass a decree for

declaration of marriage of applicant with respondent is void and

voidable" instead of the prayer that "the marriage of the

appellant with respondent be dissolved". After hearing both the

parties, the trial court rejected the said amendment petition on

the ground that the proposed amendment petition has been filed

after seven years and certainly the same will change the nature

of the case.

8. Learned counsel for the petitioner submits that the

divorce petition was filed mainly on the ground of adultery

before the marriage and it is appropriate that the said petition be Patna High Court C.Misc. No.1103 of 2018 dt.17-02-2023

decided under Sections 11 and 12 of the Hindu Marriage Act

and the Amendment will not change the nature of the suit and

will not cause any prejudice to the other party as the facts of

leading adulterous life of the respondent before the marriage has

already been disclosed in the plaint and accordingly, it is in the

interest of justice that the amendment petition may be allowed.

He also submits that the wrong provision of law will not make

the entire case non-justiciable and on this point he has cited the

judgment of Hon'ble Division Bench of this Court reported in

2019 (1) PLJR 219 (Ravindra Kumar Rai vs. Gudiya Rai).

9. On the other hand, learned counsel for the

respondent submits that presently the evidence of both the

parties have already been closed and the said petition was filed

after seven years of the filing of the divorce petition without

disclosing any valid reasons. Further, it is submitted that in this

case, Section 11 or 12 will not apply as nullity of marriage is

different from divorce. He further submits that under Section 12

(2) (b) (ii) of the Act, the petition shall be entertained within one

year and admittedly the case has been filed after one year of

marriage. He also submits that the amendment sought for if

allowed will change the nature of the suit from the divorce to

declaration of the marriage as void.

Patna High Court C.Misc. No.1103 of 2018 dt.17-02-2023

10. Since Section 11 of the Hindu Marriage Act only

refers as conditions to Clause no. (i), (iv) and (v) of Section 5 of

the Hindu Marriage Act which does not cover the case of the

petitioner. Section 12 (1) (d) provides one of the grounds for

declaration of marriage void by a Court of competent

jurisdiction. The Court may annul the marriage by

pronouncement of decree of nullity on the ground that the

respondent was pregnant at the time of the marriage pregnant by

some person other than the petitioner, however, in view of

Section 12 (2) (b) certain riders have been given including

filing of petition within on year of the date of marriage. It

appears from the record that the time period for filing the

petition was in knowledge of the petitioner.

11. The Hon'ble Supreme Court in Revajeetu

Builders and Developers Vs. Narayan Swamy and Sons and

Others (2009) 10 SCC 84 on critically analysing both the

English and Indian Cases, held that some basic principles

emerge which ought to be taken into consideration while

allowing or rejecting the application for amendment.

(i) whether the amendment sought is imperative for proper and effective adjudication of the case.

(ii) whether the application for amendment is bona fide or mala fide.

(iii) the amendment should not cause Patna High Court C.Misc. No.1103 of 2018 dt.17-02-2023

such prejudice to the other side which cannot be compensated adequately in terms of money.

(iv) refusing amendment would in fact lead to injustice or lead to multiple litigation.

(v) whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case, and

(vi) as a general rule, the Court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application.

12. These are some of the important factors which may

be kept in mind while dealing with application filed under Order

VI Rule 17 of C.P.C. These are only illustrative and not

exhaustive.

13. It was further observed by Hon'ble Supreme Court

in the aforesaid case (Revajeetu Builders and Developers Case)

that the decision on application made under Order VI Rule 17 is

a very judicial exercise and the said exercise should never be

undertaken in a casual manner.

14. The law is now well settled that the Courts have very

wide discretion in the matter of amendment of pleadings but

Court's powers must be exercised judiciously and with great

care. While deciding applications for amendments the Courts

must not refuse bona fide, legitimate, honest and necessary Patna High Court C.Misc. No.1103 of 2018 dt.17-02-2023

amendments and should not permit mala fide, worthless and/or

dishonest amendment.

15. The Division Bench of this Court in the Judgment of

Arvind Kumar Rai Vs. Guria Kumari (AIR 2019 (1) PLJR

218 in paragraph 27 it is held:-

"27. Under Rule 7 of the Family Courts (Patna High Court) Rules, 2000, it stands clarified as to what should be the content of the plaint. It is stated that in addition to the particulars required to be furnished under Order VII Rule 1 of the Code of Civil Procedure, 1908 Section 20 (1) of the Hindu Marriage Act, 1955 every plaint/application for judicial separation, nullity of marriage, divorce and restitution of conjugal rights shall contain the particulars prescribed therein. It is nowhere stated that the provision of law under which the relief is being sought, should also be written in the plaint. Otherwise also even if wrong provision of law is written that will not make the entire case non-justiciable. That has to be considered merely as typographical error."

16. In the aforesaid case, the relief sought was for

declaration of marriage between the petitioner and opposite

party to be null and void and the said relief has not been

changed and accordingly held that if wrong provision of law is

written then that has to be considered merely as typographical

error. But in the present case, the proposed amendment shall

change the nature of prayer in the case i.e. 'prayer for decree to

divorce' with 'prayer for declaration of marriage as void'.

Accordingly, proposed amendment cannot be considered as Patna High Court C.Misc. No.1103 of 2018 dt.17-02-2023

typographical error.

17. Having heard the learned counsel for the parties

and considering the material available on record, including the

impugned order, it is evident that admittedly the amendment

petition has been filed after inordinate delay of seven years and

the amendment proposed shall change the nature of prayer and

also fresh petition on the amended claim would be barred by the

limitation period prescribed by the Hindu Marriage Act for

filing the petition for decree of nullity on that ground and the

amendment sought cannot be said to be bona fide. The

impugned order is speaking order which has been passed

assigning the sound reasons and in view of the law as discussed

above, there is no legal infirmity in it and no interference is

required in the impugned order.

18. This Civil Miscellaneous Application is,

accordingly, dismissed.

(Sunil Dutta Mishra, J) ashutosh/-

AFR/NAFR                AFR
CAV DATE                N/A
Uploading Date          24.02.2023.
Transmission Date