1 IN THE HIGH COURT OF BOMBAY AT GOA MISC. CIVIL APPLICATION NO.502/2010 IN FIRST APPEAL NO.106/2005 Smt. Assencao Andrade Crasto alias Doris Crasto, d/o. Shri Timoteao Andrade, aged 39 years, housewife, resident of House No.147, Murda Grande, Nuvem, Salcete, Goa. ...... Appellant. V/s. Shri Caitano Antonio Lurenceo Crasto, son of Shri Antonio Xavier Crasto, aged 39 years, driver, resident of House No.355, near St. Anthony Chapel, Tembim, Raia, Salccte, Goa. ........ Respondent. Mr. C. A. Coutinho, Advocate for the appellant. Mr. M. S. Sonak and Mr. J. Supekar, Advocates for the respondent. CORAM :- A.S. OKA, J. Date :- 30th July, 2010. ORAL ORDER : This is an application taken out by the respondent in the appeal. The respondent in the first appeal is the original plaintiff who 2 prayed for a decree of divorce. The decree was prayed for under clauses (1) and (5) of Article 4 of the Law of Divorce. The suit has been decreed by the learned trial Judge by holding that ground under clause (5) of Article 4 has been established. The other ground has been negatived. 2. The present application is made seeking amendment to the plaint for incorporating the ground of de facto separation for 10 consecutive years provided under clause (8) of Article 4 of the Law of Divorce. The contention of the respondent-plaintiff is that even according to the case of the appellant-defendant, there has been a de facto separation from the year 1999. 3. The learned Counsel appearing for the appellant has opposed this application. He has filed a reply. He submitted that there is no evidence on record to show that there is a de facto separation for 10 consecutive years and in any event, there is no evidence of free consent. He submitted that in fact the respondent-plaintiff had thrown out the appellant-defendant out of the matrimonial home. He submitted that prejudice will be caused to the appellant-defendant if 3 this application is allowed. 4. I have considered the submissions. The marriage between the parties was solemnized on 28th May, 1994. At this stage, without going into the cause of separation, prima facie, it can be certainly stated that at least from the year 1999 till the year 2005 when the suit was decided, the parties were residing separately. The suit filed in the year 2000 was decided in January, 2005 and the appeal of the year 2005 has reached final hearing in the year 2010. One of the objections raised by the appellant is that a fresh suit can be always filed by the respondent-plaintiff. If a fresh suit is filed, it will prolong the agony of both the parties, who are facing a litigation since the year 2000. Therefore, a permission deserves to be granted to the respondent- plaintiff to amend the plaint by incorporating the additional grounds. It is obvious that the appellant-defendant will be entitled to file written statement to the amended plaint. To avoid prejudice to both the parties, power will have to be exercised under Rule 25 of Order XLI of the Code of Civil Procedure, 1908 by permitting the parties to adduce evidence before the trial Court. 4 5. In the circumstances, I pass the following order : (A) Misc. Civil Application is allowed in terms of prayer clause (a). (B) The parties are directed to appear before the learned Civil Judge, Senior Division, at Margao on Monday, 6th September, 2010 at 2.30 p.m. (C) The respondent-plaintiff shall carry out the amendment within a period of two weeks from 6th September, 2010. The respondent-plaintiff shall serve a copy of the amended plaint to the appellant-defendant within a period of one week from the date on which the amendment is carried out. (D) The appellant-defendant shall file written statement to the amended plaint within a period of 4 weeks from the date on which the copy of the amended plaint is served to her. (E) The trial Court will permit the parties to adduce evidence on the issue whether the ground under clause (8) of Article 4 of the Law of Divorce is established by the respondent-plaintiff. (F) After permitting the parties to adduce evidence, the learned trial Judge shall record a finding on the said issue. After 5 recording the evidence, the learned trial Judge shall forward to this Court his finding along with the record of the case. (G) The finding shall be recorded by the learned trial Judge before end of the year 2010. Copies of the finding shall be made available to the Advocates representing both the parties. It is made clear that all contentions of the parties on the additional issue are kept open. (H) Record of the suit shall be transmitted forthwith to the trial Court. The record shall be returned by the trial Court along with the finding. The appeal shall be placed on Board on 10th January, 2011 before the appropriate Court under the caption of “Directions”. (I) It is made clear that no adjudication has been made on the merits of the appeal. A.S. OKA, J. ssm