WP 5540/10 1 SSK/5 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 5540 OF 2010 Mr. Shweta W/o. Bharat Rathod ....Petitioner Versus Shri. Bharatkumar Babulal Rathod & Anr. ...Respondents Mr. A. M. Saraogi, Advocate for the Petitioners. Mr. R. T. Lalwani, Advcoate for the Respondent. CORAM : R. V. MORE, J. DATED :28th JULY, 2010. P.C.: Heard Mr.Saraogi and Mr.Lalwani learned Counsel appearing for the Petitioner and Respondent No.1 respectively. 2. Rule. Since short point is involved, by consent, Rule is made returnable forthwith. 3. The brief facts giving rise to the present writ petition are as follows: The Respondent No.1-husband has filed M.J.Petition No.A-1542/2006 seeking decree for divorce against the Petitioner-wife. The Petitioner-wife has filed counter claim to this petition claiming relief under WP 5540/10 2 SSK/5 section 9 of the Hindu Marriage Act, 1955. The proceedings are pending before the Family Court. The Petitioner-wife filed an application under Order 6 Rule 17 at Exhibit “43” to amend the counter claim. This application was rejected and therefore, the present petition. 4. Under the original counter claim, the Petitioner-wife claimed decree of restitution of conjugal rights with direction to the Respondent- husband to forthwith resume cohabitation with her at the matrimonial house. By the proposed amendment, the Petitioner-wife sought to introduce two more prayers viz. (a-i) and (a-ii). By prayer (a-i), the Petitioner-wife in the alternative to prayer (a) sought direction against the Respondent to cohabit with her at his flat at A-3/34, Tulip C.H.S.Ltd, Mahendra Gardens, S.V.Road, Goregaon (West), Mumbai – 400 062. By prayer (a-ii), the Petitioner-wife sought additional prayer in the alternative of prayers (a) and (a-i) directing the Respondent to provide her a similar flat on ownership basis in her name admeasuring about 600 to 700 sq.ft. in the vicinity of the matrimonial home or the Mahindra Garden premises with all the amenities and luxuries enjoyed by the Respondent and his joint family. 5. Mr. Saraogi, learned Counsel for the Petitioner submitted that the amendment should have been granted by the Family Court as it is not contrary to the nature of the original pleadings in the counter claim. WP 5540/10 3 SSK/5 Mr. Lalwani, learned Counsel for the Respondent, however, supported the impugned order and submitted that the proposed prayers which are sought to be introduced by the amendment which will change the nature of the Petitioner’s counter claim and therefore, same cannot be allowed. 6. Having considered the submissions of respective Counsel and having gone through the impugned order, I find merit in the petition. The prayers which are sought to be introduced by the proposed amendment are mentioned above. The proposed prayer (a-i) is in the alternative of prayer (a) and the proposed prayer (a-ii) is in alternative of prayers (a) and a(i). By the original prayer (a), the Petitioner seeks decree of restitution of conjugal rights against the Respondent directing him to forthwith resume cohabitation with her at the matrimonial house. By proposed prayer (a-i), he Petitioner-wife in the alternative sought direction against the Respondent to cohabit with her at his flat at A-3/34, Tulip C.H.S.Ltd, Mahendra Gardens, S.V.Road, Goregaon (West), Mumbai – 400 062. By the proposed prayer (a-ii), the Petitioner in the alternative to prayers (a) and (a-i) seeks direction against the Respondent to provide her a similar flat on ownership basis in her name admeasuring about 600 to 700 sq.ft. in the vicinity of the matrimonial home or the Mahindra Garden premises with all the amenities and luxuries enjoyed by the Respondent and his joint family. In my opinion, the proposed prayers cannot said to be contrary to the original WP 5540/10 4 SSK/5 prayers. By introduction of the proposed prayers, the nature of the Petitioner’s proceedings under section 9 of the Hindu Marriage Act will not be changed. In fact, proposed prayers are consistent with the original prayers and therefore, in my view, the proposed amendment ought to have been granted. 7. The learned Judge, while rejecting the Petitioner - wife’s amendment application has gone into the merits of the Petitioner- wife’s entitlement of proposed prayers. It is now settled principal that the merits of the amendment cannot be gone into. Mr. Lalwani, learned Counsel for Respondent also submitted that on merits, the proposed prayers cannot be granted. This submission also cannot be considered for the same reason. The Respondent-husband is always entitled to oppose the relief claimed by the Petitioner -wife on merits. In the circumstances, I dispose of the petition by passing the following order: 1. The impugned order is quashed and set-aside. 2. The Petitioner-wife’s application under Order 6 Rule 17 at exhibit “43” to her counter claim is allowed. Necessary amendment shall be carried out within a period of two weeks from the date of receipt of this order. WP 5540/10 5 SSK/5 3. Needless to mention that the Respondent-husband is entitled to file additional written statement within a period of two weeks thereafter. 4. Looking into the controversy involved in the matter, I deem it fit to direct the Trial Court to decide the Respondent- husband’s Petition alongwith the Petitioner- wife’s counter claim as expeditiously as possible. Order accordingly. (R. V. MORE, J.)