73 6 Civil Revision No234 of2009 1 11 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil RevisionNoO234 of 2009 Date ofdecision 22072010 m r 0 Rajinder Kumar Dawar C Appellant I CD versus I Z Kanchan Responden r I 08 CORAM HONBLE MRJUSTICE KCPURI 7 Present Mr DSali Senior Advocate with Ms Neha Advocate for the llm Mr SaurabhBajajAdvocate for KCPURI J This is a revision petitionunder Article 227 ofthe Constitution read with Section 151 CPC for settingaside the order dated 17011009 passedby the IeamedAdditionalDistrict JudgeFTCJKarnal who dismissedthe filed bythepetitioner under order 6 Rule 17 CPC for the amendmentof the petitionunder Section 10 of the Hindu Marriage Act 6in short theAct9 to the petitionunder section 131a1of the said Act Uma 2012.12.21 12: 49 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:24 I attest to the accuracy and integrity of this document 74 4 06 Civil Revision N03234 of2009 It is submittedthat while filingthe petitionthe had not beenproperly advised legallywhich hasresulted into filingofa petition under Section 10 of the Hindu MarriageAct 1955 for a decreeofjudicial but as per the contentlons raised by the petitionerin the said petitionit has to be filed asa petition under section 13a9 ofthe Act for 0 corroboration of his contention which has necessitatedthe petitioner to C amend theabove petitionin thefollowing mannerl I CAO i9 That the petitionermay pleasebe allowed to substitutethe Head Note Petition under Section 10 ofthe Act as amended Z upto to date for the decreeofjudicialseparatewith Petition under section of the Act as amendedup to date for dissolution ofthe marriage bya decreeofdivorce 99 08 iil That para no 11 of the petitionmay pleasebe allowed to be deletedand to answering defendantthe followingpara in place 7 Z ofexisting paral That after the fiIing of the above noted petition the has preferred to file a false criminal complaint under section 12 of the Protection of Women from Domestic Violence Act 2005 againstthe presentpetitioner and others before the learned Sub Divisional Judicial Magistrate Assandh on 28052008 which was decided in favour ofthe noW the in the instant case in hand and in that complaintthe present leveled false and frivolous allegationsagainstthe present petitionerand his family membersjustto maligntheir reputation in the Societyat Iarge Uma 2012.12.21 12: 49 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:24 I attest to the accuracy and integrity of this document 75 t Civil RevisionN03234 of2009 3 which amounts to cruelty It is pertinent to mention here that the is the petitioner every daywhile residing in his company She is neither allowing physicalcohabitation nor cookingfood for the C2 him in the presence of friendsand relativeson 0 various occasions at tnstances The petitionerhumblysubmits C that the has been payingthe rent to his I C5 landlord in the company of his wife and children paying school feesofhis children making regularpaymentfor all the grocery articles through givingregularmedical attention to his wife and children at the time of requisition I attending parentteachermeeting at School Even aftergiving 08 luxury ofthe life he hasto bearnotcooperation ofhis wife 1e bynot cooking food for him which has resulted into arranging 7 Z of his food from various Dhabas and Hotels which has also resulted into poor health due to unhygienic condition of foods etc preparedby the said Dhabasowners Besides this the prestigeof the petitioner has been lowered down in his social circle which hascaused mentalstress and tension to his living So it has become practicallyimpossible for the petitioner to continue the marriage and the marriagehas failed and broken and as such the petitioner is entitled to seek a decreeofdivorce on thegroundofcruelty 111 That the petitionermaypleasebe allowed to substitutethe followingparawith the existing prayer Uma 2012.12.21 12: 49 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:24 I attest to the accuracy and integrity of this document 76 9W Civil RevisionNo234 of2009 4 1 It is therefore prayedthat keepingin view the facts and circumstances mentioned above a decree for divorce by dissolution of between the and the may kindlybe passed in favour of the m r and againstthe with costs in the interest of 0 justice 39 C 3 The amendmentwill not changethe nature ofthe case I C5 because as per the legal both the sectionsare synonymousto each I otherin thetrue sense The proposed amendmentis very much necessaryfor Z the proper of the matter in question Prayeris made 1 accordingly 4 On the other side this application has been opposedby the 08 and tt lS statedthat of petitionfrom Section 10 to section 13 of the Act is not in the eyes of law By filingthe V applicationthe wants to changethe nature Qm the averments mentionedin the petitionfiled uinderSection 10 ofthe Act which is not sustainablein the eyesoflaw Under Section13of theAct it has been mentionedthat in a petitionfor dissolution of Marriageby a decree of divorce Court aer seeinga11the attending circumstancesmay pass a decreeofjudicial Secondlypetition under Section 13 ofthe Act can be convertedunder section 10 of the Act but a petition under section 10 of the Act for judicial cannotbe legallyconverted into one under section 13 of the Act The applicant petitionerby makingallegations againsthis previouscounsel is taking benefit of his own wrongs The earlier petitionOled bythepetitioner under Uma 2012.12.21 12: 49 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:24 I attest to the accuracy and integrity of this document 77 l Civil RevisionNo7234 of2009 5 Section ofthe Act on thegroundofcruelty has been dismissedby the Court of Shri MC Mehra the then leamed Additional District Judge Karnal on 27062007 After seeing no alternative the agaln ftled the presentpetition under Section 10 of the Act for making a 1 C groundunder Section 13A9 ofthe Act seekingdecreeofdivorce against 0 the and now byway of this applicationthe applicarletitioner C3 again wants to take divorce under section 13 a9of the Act on the I C5 similar grounds on which the earlierpetition seekingdivorce was dismissed byway ofdefault Dismissalofthe is prayedfor Z The trial Court a8erhearing the learnedcounsel for theparties dismissedthe applicationvide order dated 171 1 009 holding I thatthe same is devoid ofanymerit 08 Feeling dissatisfiedwith the aforesaid order the present revision petitionhasbeenflled sm Z I have heard the learned counsel for the partiesand have L1 carefullygonethrough the recordsofthe case Mr Bali leamed Senior counsel has submittedthat groundof crueltyis the same as mentionedin Section 10 ofthe Act and Section 13 ieaIof the Act So it is contendedthat petitioner 1S entitled to decreeof divorce under Section 13ia9 of the Act insteadof decree of judicial under Section 10 ofthe Act It is contendedthat thenecessity of amendmenthas arisen duringthe pendency of the petitionunder Section 10 of the Act as false criminal complaint under Section 12 of theAct has been flled bythe againstthepetitionerLearned counsel for the petitioner has relied upon authority Alka Khemka vs Kishan Lakkar Uma 2012.12.21 12: 49 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:24 I attest to the accuracy and integrity of this document 78 44 1 Civil RevisionN03234 of2009 6 q 1 2008 121All India Hindu Law Reporter 486 and authorityDeepaliVSe Pankai Gupta 2007 411 Marriage Law Journal page 390 Learnedcounselfor the on the other hand has submittedthat byproposed amendment the petitioner wants to e r change the natureofpetitionThe relief ofjudicial is less relief 0 and relief of decree of divorce under Section 13ia9 of the Act is a C different relief as the marriagebetweenthe partiesshall be I C5 dissoIvedaller passingthe said decree The authorities relied upon bythe I petitioner are not to the factsof the presentcase as in those cases ultimate relief regarding the originalrelief and the amended relief was to dissolve the marriage However in the presentcase the relief I sought in the originalpetitionis for judicial whereas the relief 08 sought by way of amendmentis a decree of divorce and that cannot be m allowed and it would amount to changethenature ofthe case It Z 1S contendedthat presentapplication for amendmenthas been filed many yearsafler the filingof thepetitionunder Section 10 ofthe Act Inviewof the amended provisionsof order 6 Rule 17 CPC applicationfor amendmentcannot be allowed where the trial has commenced unless the Court comes to the conclusion that in spiteof due diligencethepartycould not haveraisedthe matter beforethe commencement ofthe trial I have carefullyconsideredthe submissions madeby both the sidesand havegonethrough the recordsofthe case The petitioneroriginally filed petitionunder Section 10 of the Act for a judicialseparation on thegroundof crueltyNo doubt in Section 10 of the Act it is mentioned that decree of judicialseparationcan be Uma 2012.12.21 12: 49 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:24 I attest to the accuracy and integrity of this document 79 Aw Civil RevisionNo7234 of2009 7 r2 passed on any ofthe groundsspeciedin sub section l ofSection 13 ofthe Act but the fact remainsthat relief of judicial is discrepant from the relief of decreeof divorce By passing the decreeofjudicial theparties have to wait for one year formaking out a groundfor divorce 1 0 So the relief claim in Section 10 of theAct is a lesser relief 0 than thatthe reliefclaimedunder Section 13 ofthe Act C So far as authority Alka Khemkas case tsupral is concerned C9 111thatcase petition was filed under Section 34 ofthe Act claiming reliefof nullityof marriageand throughthe amendment the petitioner Z wants to introducealternativeprayerfor divorce The relief claimed in the originalpetition as well as amendedpetition was the same ie marriage to I be dissolvedbetweentheparties 08 AuthorityDeepalis case supral is also as 111 that case also the originalrelief and the amendedrelief claimed were the 7 Z same te dissolving the marriage between the partiesSo the above said Qw both the cases are on the facts of the presentcase I am of the considered Vlew that throughthe proposed amendment the relief claimed would change the nature of the case The mandateof amendment provisionof Order 6 Rule 17 CPC is that amendmentshould not be allowed after commencement of the trial unlessthe Court comes to the conclusion that in spiteof due diligence the partycould not haveraised the matter beforethe commencement oftrial So in vlew of the abovediscussion the writ petitionis without anymerit andthe same standsdismissed Uma 2012.12.21 12: 49 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:24 I attest to the accuracy and integrity of this document 80 9V J Civil Revision Nol234 of2009 8 However lt lS observedthatpetitioner shall be at libertyto flle separate petitionunder Section 13 ofthe Act ifso advised A copy of this judgment be sent to the trial Court for strict 1 C 0 JUDGE C SV I 0 1 I Z Q I C6 m 91 e U Uma 2012.12.21 12: 49 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:24 I attest to the accuracy and integrity of this document