1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 6715 OF 2009 Bharatlal Radheshyam Vishwakarma........ Petitioner versus Mrs. Komal Bharatlal Vishwakarma ........Respondent. Mrs. Anjali R. Waghmare adv. for the Petitioner Mr. R.C. Kaushik adv. for the Respondent. CORAM: A. P DESHPANDE, J. DATED : 06th November, 2009. P. C.: 1. The present petitioner is the husband whereas the respondent is the wife. The marriage was solemnized in the year 2001. Out of the marital wedlock, two issues are born. Both the children are girls. In the year 2006 the respondent filed a petition claiming maintenance under section 18 and 20 of the Hindu Adoption and Maintenance Act. The maintenance was claimed by the wife for herself and for two children. The trial court has granted interim maintenance in the sum of Rs. 2000/- to the wife and Rs. 1000/- each to the children. At a later point of time the petitioner filed a Hindu Marriage Petition for restitution of conjugal rights. Both the petitions i.e. for maintenance filed by the wife and the petition for restitution of conjugal rights by the 2 husband, are tagged together and after filing of written statement and framing of issues, parties have proceeded to the trial. In the petition filed by the wife, the present petitioner(husband) filed written statement and denied his capacity to maintain the wife and the children on the ground that he hardly has an income. The evidence of the wife has been recorded and her evidence is also closed. The present petitioner (husband) had filed an affidavit of examination in chief. However thereafter the petitioner husband moved an application for withdrawal of the examination in chief and sought permission to file fresh affidavit with a view to substitute the examination in chief already tendered in the court. The application came to be rejected. In the said application the petitioner did plead, what is termed as subsequent events, that the petitioner was earlier staying in the joint family and came to be driven out of the family by his father compelling him to reside in the zopadapatti and do some labour work. According to the petitioner he is earning Rs. 2500/- which is insufficient to maintain himself. In these set of facts and when the evidence of the petitioner was being recorded, an application for amendment of the written statement in the petition filed by the wife for maintenance came to be moved, urging the same facts which were narrated for replacing the examination in chief, such as the petitioner being driven out of the house by the father and is working as a labourer and staying in zopadapatti. With a view to achieve the same object which was sought to be achieved by moving earlier application for substitution of affidavit, the present 3 application for amendment came to be filed. The trial court rejected the application holding that the application has been belatedly filed and that the amendment is not necessary. 2. Perused the impugned order. As the basic issue is about the income of the present petitioner and his capacity to maintain, the petitioner can always lead evidence touching his income and capacity to maintain even without the proposed amendment. As, in my view, it would be open for the petitioner to lead evidence touching his income, there is absolutely no need to seek an amendment to the written statement and/or to permit the amendment that too at the stage when the evidence of the wife is over and the evidence of the petitioner-husband is half way. No prejudice is caused by the impugned order to the petitioner requiring any interference in writ jurisdiction. In the result the writ petition is summarily dismissed. (A. P. Deshpande, J.)