1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL WRIT PETITION NO.1069 OF 2008 Archana Ajit Harugale .. Petitioner Versus Ajit Rajaram Harugale .. Respondent Mr.P.D.Dalvi for the petitioner. Mr.Amit Borkar for the respondent. CORAM : A.S.OKA, J. DATE : 7 th August 2009. P.C.: . The submissions of the learned counsel appearing for the parties were heard on the last date. The petitioner is the wife and the respondent is the husband. The petitioner filed a petition for divorce in the Civil Court by alleging that the petitioner is living in adultery with the 2 nd respondent to the Marriage Petition. An application was made by the petitioner-wife on 14 th September 2007 seeking amendment of her written statement. By the impugned order dated 30 th October 2007, the said application was rejected by the trial Court. 2 2. The learned counsel appearing for the petitioner has invited my attention to the averments made in the application for amendment. He pointed out that the petitioner has recorded reasons as to why she refrained from incorporating the averments sought to be added by the proposed amendment. He submitted that the learned trial Judge could not have rejected the application on the ground that the same has been filed belatedly. He submitted that in a matter like this the trial Court ought to have been liberal in allowing the amendment. 3. The learned counsel appearing for the respondent-husband pointed out that after affidavit in lieu of examination in chief was filed by the respondent-husband, from time to time, the petitioner went on applying for adjournment and belatedly the application was made. He submitted that the learned trial Judge has rightly rejected the application for amendment. 4. I have carefully considered the submissions. In the petition filed by the 1 st respondent 3 allegations of very serious nature have been made against the petitioner. The allegation is that the petitioner has been living in adultery with the 2 nd respondent to the Marriage Petition. In the application for amendment the petitioner has pointed out that she is a mother of two children and the averments which she is now seeking to incorporate were not made by her in her written statement sheerly out of embarrassment. By the amendment the petitioner is seeking to incorporate two paragraphs in the written statement in which she has set out the alleged abnormal behaviour of the respondent. The petitioner wants to allege that as she declined to accede to the abnormal and unnatural demands made by the respondent, false allegations have been made by the respondent against her and infact respondent has driven her out of the matrimonial home. The specific case made out in the application for amendment is that the petitioner was too embarrassed to make such allegations earlier but when she found that the false allegations made in the petition were reiterated in the affidavit in lieu of 4 examination-in-chief filed by the respondent, she was compelled to move the application for incorporating two additional paragraphs in the written statement. 5. The learned counsel appearing for the respondent has placed reliance on the decision of the Apex Court in the case of Vidyabai & Ors Vs. Padmalatha & Anr. [(2009) 2 Supreme Court Cases 409] by contending that the Apex Court has held that Rule 17 of Order VI has been couched in a mandatory form and the Court s jurisdiction to allow such belated amendment is taken away unless the Court is satisfied that inspite of due diligence the parties could not have raised the matter before the commencement of trial. 6. It must be noted here that the trial Court was dealing with a petition filed by the husband against the wife seeking a decree of divorce on the ground of adultery. The specific case made out by the petitioner in her application for amendment was that being the mother of two children she refrained from placing on record the allegations which according to her would have 5 resulted in causing embarrassment to her. The reason given by her for belatedly coming out with amendment is that when the respondent-husband reiterated serious allegations made against her in her affidavit-in-lieu of examination-in-chief, she felt that there was no option left for her but to place the additional facts on record. In my view, considering the nature of averments made by the respondent in his petition and considering the text of the proposed amendment, the explanation for delay given by the petitioner- wife deserves to be accepted. Infact, looking to the nature of the allegations which the petitioner wants to incorporate, there was some justification for her in hoping that an occasion for making such allegations against her husband will not arise. The stand taken by her that out of sheer embarrassment she was reluctant to place the allegations on record is required to be accepted considering the status of any ordinary Hindu woman in the society. 7. Therefore, in my view, the petitioner had come out with the explanation for delay which 6 deserves acceptance. Therefore, the learned trial Judge ought to have allowed the application for amendment. 8. Hence, I pass the following order: : O R D E R : (a) The impugned order dated 30 th October 2007 is quashed and set aside and the application made by the petitioner at Exhibit 43 is allowed. (b) The petitioner shall carry out the amendment to the written statement within a period of four weeks from the date on which writ of this order is received by the trial Court. (c) It will be open for the respondent to file further affidavit-in-lieu of examination-in-chief in the light of the amendment. (d) Writ petition is allowed in above terms. (e) Hearing of the Hindu Marriage Petition is accepted. (A.S.OKA,J)