IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE APPELLATE SIDE APPELLATE SIDE WRIT PETITION NO. 5492 OF 2008 WRIT PETITION NO. 5492 OF 2008 WRIT PETITION NO. 5492 OF 2008. Avni Suraj Shah ..Petitioner. V/s. Suraj Narendra Shah ..Respondent. Ms Veena Gowda, Advocate for the Petitioner. Mr R. T. Parekh, Advocate for the Respondent. CORAM: V.C.DAGA, J. CORAM: V.C.DAGA, J. CORAM: V.C.DAGA, J. DATED: 28.08.2008. DATED: 28.08.2008. DATED: 28.08.2008. P.C.: P.C.: P.C.: ---- ---- ---- 1. Rule returnable forthwith. Heard finally by consent of parties. Perused the petition. 2. This petition, filed under Article 227 of the Constitution of India, is directed against the common order dated 24.6.2008 [to the extent it is adverse to the petitioner] passed below Exhs. 6,7 and 10 in Petition No.A 2475 of 2006 whereby prayers for amendment were rejected. 3. The rejection of the amendment application would cause a substantial prejudice to the petitioner-wife. As against this, no prejudice would be caused to the husband except that the matter would get delayed for a month or so. If amendment is not allowed and the wife is driven to another litigation, it would not only take months but it would take years and both would get locked up in further matrimonial litigation. 4. The approach adopted by the Family Court in rejecting amendment is erroneous and not supported by law. The Family Court is expected not to be too technical while considering such types of prayers. 5. The Family Court, in para 3 of the impugned order has observed that the application containing twin prayers is not maintainable. It appears that the Family Court was of the view that separate application ought to have been made with separate prayer for each relief. The Family Court is expected to bear in mind that it is not necessary for the parties to appear before Family Courts through Advocates. The litigant can prosecute his own case, though factually in most of the cases, Advocates appear for the parties. In the circumstances, if the parties are appearing in person, they would not know the technicalities of law. Keeping this aspect in mind, the Family Court is expected to be not so rigid and technical so as to deprive the parties of their legitimate substantive rights. 6. Having heard both parties and looking to the consensus between them, I see no difficulty in accepting the contention of the petitioner permitting her to amend her written statement so as to include counterclaim to seek return of Stridhan under Section 27 of the H.M.Act. 7. At this juncture, I may make it clear that while considering proposed amendment, merits thereof are not required to be examined as such they are not examined while passing this order. 8. It is further made clear that if, on trial, relief claimed under Section 27 of the H. M. Act, is not found to be barred by limitation, in that event such an amendment will relate back to the date of the presentation of plaint. The amendment though allowed, it will not relate back to the date of plaint, if the Family Court on merits comes to the conclusion that the relief claimed by way of amendment was barred by limitation on the date when it was introduced. Thus, the amendment is allowed keeping the question of limitation open for being decided by the Family Court on its own merits, after framing a proper issue and evidence thereon. 9. In the result, prayer for amendment of written statement to introduce counterclaim leading to seek return of Stridhan under Section 27 of the Act is allowed reserving right of the opponent to file additional W.S., so as to reply the counterclaim. 10. After completion of the rival pleadings, the Family Court shall frame a issue and permit both parties to lead evidence and decide all the issues raised in the proceedings. All rival contentions in this behalf are kept open. 11. In the result, the petition is allowed. Rule is made absolute in terms of this order with no order as to costs. (V.C.DAGA,J.) (V.C.DAGA,J.) (V.C.DAGA,J.)