:1: :1: :1: IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION WRIT PETITION NO. 931 OF 2008 Mrs.Sharmishtha @ Seems Surendra Shah ...Petitioner Versus Shri Surendra Ratilal Shah ....Respondent ====== Mr.Piyush Shah i/by. Navin B. Shah, Adv. for the petitioners. Mrs.S.S.Gokhale, Adv. for the respondents. CORAM: S.C.DHARMADHIKARI, J. DATED: 5TH MARCH, 2008. P.C. P.C. P.C. : : : . Rule. Respondent waives service. Heard forthwith by consent. 1. This Writ Petition under Article 227 of the Constitution of India is directed against an order passed by the learned Judge, Family Court, Mumbai rejecting the Application made by the petitioner for amendment of the Written Statement. :2: :2: :2: 2. It is undisputed before me that the Hindu Marriage Petition No. 111 of 1991 has been filed by the Respondent-Husband against the petitioner seeking a Decree for Divorce against the Wife on the ground of cruelty. This Marriage petition is pending in the Family Court since 7.6.2003. 3. The petitioner-wife filed a Written Statement and raised several pleas including that the whole case of the husband is false, that the husband has inflicted cruelty upon her and has driven her out of the house. That is how, she is residing at the parents house. the entire case in the petition of the husband has been denied, which is filed on 15.9.1994. 4. The Application for Amendment (Exh.106) to the Written Statement came to be filed on behalf of the Wife. In the Application, she states that there are certain subsequent developments which she desires to place on record and which have come to her knowledge only in the year 2007. The events are narrated from paras 3 to 5 of the Amendment Application and it is urged that the have come to her knowledge only in :3: :3: :3: September, 2007. The events are pertaining to the alleged second marriage of the husband with a Lady and the fact of a son being born from that relationship. The Wife prayed that these are very vital aspects and would have a bearing, insofar as, the outcome of the Marriage Petition. They are necessary to be incorporated, so that, the wife can highlight her case in the original Written Statement. This Amendment Application was filed on 28.9.2007. 5. A copy thereof was served on the husband, who contested it and in para-4 and 5 of the Reply, the Husband states thus :- "4. With reference to the rest of the paragraphs the petitioner says that there is no need to amend the written statement. If the amendment is allowed, the proceedings will be delayed. Already 14 years have passed since the filing of the petition. The Respondent has succeeded in protracting the litigation for 14 years. The oral evidence was over on 23.11.2003. It took almost 5 years to get the report of hand writing expert about the letter which is a carbon copy of the original letter alleged to be written by the petitioner and the petitioner has totally denied the same. 5. The petitioner says that the petitioner is filed on the ground of cruelty and desertion. If the cruelty and desertion is proved by the petitioner-husband he cannot be denied the decree of divorce even if :4: :4: :4: assuming without admitting that the petitioner has entered into second marriage. He cannot be said to be taking advantage of his own wrong. His so-called second marriage is null and void as per law and the Respondent can always take proceeding for divorce on the ground of adultery or bigamy. Today the petitioner is seeking divorce on the ground of wrong committed by the wife at the time of filing of the petition. If the wrong committed by wife i.e. cruelty or desertion is proved by the petitioner, then he is entitled to divorce. If the same is denied then the Respondent would be taking advantage of her own wrong. 6. In brief, the case of the Husband is that, there is no need to amend the Written Statement, if the amendment is allowed, the proceedings will be delayed. The litigation is going on for 14 years. Oral evidence is over and further the Husbands’ petition is on the ground of cruelty and desertion. If the said fact is proved, the Relief must follow. If that is not proved, the Husbands’ petition will be dismissed. Assuming without admitting that the husband has contracted second marriage, according to the Husband it cannot be said that he has taken advantage his own wrong. His second marriage will be an act of adultery or bigamy depending upon the applicable provisions , but, that cannot be said to be relevant for the purposes of the petition filed by him. :5: :5: :5: 7. The matter was argued and reliance was placed by the Husband upon a Decision of the Delhi High Court reported in (1995) Divorce and marriage Cases, page 503 (1995) Divorce and marriage Cases, page 503 (1995) Divorce and marriage Cases, page 503 Paresh Paresh Paresh Rani Versus. Raj Kishen. Rani Versus. Raj Kishen. Rani Versus. Raj Kishen. 8. The Wife placed reliance upon several decisions of this court, and the Hon’ble Supreme Court on the point of amendment to the Written Statement. According to her, the Supreme Court has amply clarified that amendment to the Written Statement cannot be considered by applying the same yardstick as would be applicable while deciding the Amendment Application to the plaint. The particulars with regard to the change or alteration to the cause of action would not be applicable, so also, that of inconsistency. In other words, inconsistent pleas can always be raised in the Written Statement. 9. I have heard Mr.Shah appearing for the wife and Mr.Gokhale appearing for the respondent. Mr. Shah’s contention is that the judgment of the Delhi High Court which has been relied upon to reject the :6: :6: :6: Application cannot be applied, inasmuch as, therein the Husband had filed a Written Statement-cum-counter Claim whereas this is not the case here. Secondly, placing reliance upon the decision of the Hon’ble Supreme Court in the case of Andhra Bank V/s. ABN Amro Bank N.V. & Andhra Bank V/s. ABN Amro Bank N.V. & Andhra Bank V/s. ABN Amro Bank N.V. & Ors. Ors. Ors. reported in 2008(1) Bom.C.R.page 836, reported in 2008(1) Bom.C.R.page 836, reported in 2008(1) Bom.C.R.page 836, Mr.Shah submits that Amendment of Written Statement cannot be rejected only on the ground of delay. What has to be seen is whether such an amendment would be necessary for Decision of controversy between parties in Suit. Mrs.Gokhale supports the impugned order and reliance upon the Delhi High Court decision which forms the basis of the Order of the Trial court. 10. After giving my anxious consideration to the rival contentions and perusing the petition and the Annexures thereto, I am of the opinion that in the peculiar facts of the present case, the amendment Application should have been granted. The Amendment Application is moved on the basis that the Husband has been pursuing the proceedings for divorce on the ground of cruelty and bigamy that is under Section 13(1)(i-a) and (i-b). It is not necessary to refer to the :7: :7: :7: provision in any further details. Section 20 of the Hindu Marriage Act states that every petition presented under the Act has to meet the requirements stipulated therein. Section 21 makes CPC applicable subject to other provisions contained in the Hindu Marriage Act and to Rules framed by the High Court. Section 23 provides for decree in proceedings. The same reads thus :- "23. "23. "23. Decree in proceedings.- Decree in proceedings.- Decree in proceedings.- (1) In any proceeding under this Act, whether defended or not, if the Court is satisfied that- (a) any of the grounds for granting relief exists and the petitioner except in cases where the relief is sought by him on the ground specified in sub-clause (a), sub-clause (b) or sub-clause (c) of clause (ii) of section 5] is not in anyway taking advantage of his or her own wrong or disability for the purpose of such relief, and (b) where the ground of the petition is the ground specified [***] in clause (i) of sub-section (1) of section 13, the petitioner has not in any manner been accessory to or convinced at or condoned the act or acts complained of, or where the ground the petition is cruelty the petitioner has not in any manner condoned the cruelty, and [(bb) when a divorce is sought on the ground of mutual consent, such, consent has not been obtained by force, fraud or undue influence, and] (c) [the petition (not being a petition :8: :8: :8: presented under section 11)] is not presented or prosecuted in collusion with the respondent, and (d) there has not been any unnecessary or improper delay in instituting the proceeding, and (e) there is no other legal ground why relief should not be granted, then, and in such a case, but not otherwise, the court shall decree such relief accordingly. (2) Before proceeding to grant any relief under this Act, it shall be the duty of the Court in the first instance, in every case where it is possible so to do consistently with the nature and circumstances of the case, to make every endeavour to bring about a reconciliation between the parties. [Provided that nothing contained in this sub-section shall apply to any proceeding wherein relief is sought on any of the grounds specified in clause (ii), clause (iii), clause (iv), clause (v) or clause (vii) of sub-section (1) of section 13.] [(3) For the purpose of aiding the court in bring about such reconciliation, the court may, if the parties so desire or if the court thinks it just and proper so to do, adjourn the proceedings for a reasonable period not exceeding fifteen days and refer the matter to any person named by the parties in this behalf or to any person nominated by the court if the parties fail to name any person, with directions to report to the court, as to whether reconciliation can be and has been, effected and the Court shall in disposing of the proceedings have due regard to the report. (4) In every case where a marriage is dissolved by a decree of divorce, the Court passing the decree shall give a copy thereof free of cost to each of the parties.] :9: :9: :9: 11. A bare perusal of the provisions (Section 23) would indicate that the court has to be specified in any proceedings under the Hindu Marriage Act whether defended or not that any of the grounds for relief exist and the petitioner, accept in cases, where the relief is sought by him on the grounds specified in sub-clause (a), (b) or (c) of Section 5(ii) is not taking advantage of his own wrong or Disability for the relief. Similarly, the petition is not prosecuted or presented in collusion with the Respondents. 12. In the instant case, the wife is not making any counter claim. She desires to place on record a subsequent development. She wants to highlight that part of the conduct of the petitioner husband, by which it could be shown that he is not entitled to any relief, much less on the ground of Cruelty and Desertion. Further, Section 23A of Hindu Marriage Act, 1955 is also relevant. Now, at this stage, there was no necessity of going into any details as to whether the petitioner husband would be entitled or disentitled :10: :10: :10: to relief straight away. Further, in the peculiar facts, when this was just a subsequent development which is to be placed on record, there was no question at this stage, as to whether it will have any bearing on the controversy or not. True, it is that the argument is that the petitioner seeks divorce on the ground of cruelty and desertion and whether he proves the case set up in the petition or not is not relevant at this stage. Further, whether the allegations are proved or not or even if proved whether the Husband is entitled to final relief on that basis or not are not matters which should be gone into in depth and at length at the stage of granting of amendment and that too of a Written Statement. If the Amendment is delayed or that the intention of the Wife is to further defeat or postpone the adjudication, then, appropriate conditions including payment of costs can be imposed. However, it was not necessary to go into any larger issues as in the peculiar facts of this case and considering the reply of the Husband to the Application for amendment, no prejudice will be caused to him. This is not a case where the petitioner wife is straight away seeking adjudication on the issue of :11: :11: :11: adultery or bigamy. There is no counter claim. In such circumstances, there was no occasion to reject the Application. 13. The judgment of the Delhi High Court proceeds on the factual basis that the wife before the Delhi High Court had filed a petition for divorce against the respondent-husband on the grounds of cruelty. The wife withdrew her petition for divorce. However, the husband filed a reply cum counter claim in the petition seeking dissolution of marriage with the wife on the grounds of cruelty. The counter claim of the Husband was treated as a substantive petition which was strongly contested by the wife. 14. In that counter claim/petition an Application for amendment was moved by the Wife seeking amendment to her Written statement and she put in issue the remarriage of the Husband during the pendency of the counter claim. She pleaded that the aforesaid marriage was illegal and she desired that this fact be brought on record. The husband opposed the Application for amendment contending that the petition is on the ground :12: :12: :12: of cruelty and the averments with regard to his remarriage were irrelevant and not material. 15. The Amendment Application was dismissed and the Learned Judge upheld that decision. In para-8 of the Delhi High Court decision this is what is observed. "8. As already referred to, the Wrtten statement-cum-counter claim of the respondent-husband was treated as a petition for divorce on the ground of cruelty on the part of the petitioner-wife. The husband has to succeed only in case he is a position to prove on record the grounds of cruelty. The plea of the petitioner wife has been that the respondent-husband has during the pendency of the divorce proceedings entered into another marriage and has been blessed with a son out of the said wedlock. Can this be said to be a ground on the basis of which the petitioner-wife can avoid the claim of the husband for divorce on the basis of the plea of cruelty ? The answer would certainly be in the negaive. There can possibly be no dispute that no legal marriage can be contracted by a person during the subsistence of an earlier marriage. All that can be said that he was keeping a lady and could be guilty of the offence of adultery. Can this fact be considered to be evidence to indicate that the husband is taking benefit of his own misdeeds or default ? The answer certainly would be in the negative. " 16. In my view, the broad proposition that the :13: :13: :13: alleged act of adultery or bigamy is by no means an evidence to indicate that the husband is taking advantage of his own misdeeds or default could not straight away be answered in the Negative. The Learned Judge’s attention was not invited to Section 23 or 23A of the Act. Further, the petitioner before the Delhi High Court was not on the ground of cruelty and desertion but cruelty alone. The observations of the Delhi High Court therefore must be seen in that context. The Delhi High Court’s judgment was therefore distinguishable and would have no application to the facts of the present case when the Decree is on the ground of cruelty and desertion. In such circumstances, even if the Application was delayed and even that has influenced to a great extent, the Learned Judge could have directed the wife to pay costs. She was aware of the liberal principles that would go into the consideration of the Application for amendment of the Written Statement. Ultimately, the relief claimed is dismissal of the petition of husband and whether any substantive relief in favour of the wife can be granted or not was not necessary to be considered at the stage of Amendment to Written Statement. In such :14: :14: :14: circumstances, the impugned order cannot be sustained. It is accordingly quashed and set aside. Exhibit-106 stands allowed. Amendment to be carried out within Four weeks from today. However, the wife to pay costs quantified at Rs.2,000/- for the delay. Further, it is directed that no oral evidence would be permitted to be led, insofar as amended pleas are concerned in the peculiar facts of this case and when the Matrimonial Petition is pending for 15 long years. The matter must come to an end one way or the other. Rule is made absolute in the above terms. No costs. *******