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Orissa High Court
Madhusmita Samant vs Rajesh Singh on 25 February, 2015
HIGH COURT OF ORISSA : CUTTACK
W.P.(C) No.18771 of 2013
An application under Articles, 226 and 227 of the Constitution of India.
Madhusmita Samant ... ... Petitioner.
Rajesh Singh ... ... opp.party.
For Petitioner : M/s. Sujata Jena, B. Das,
S. Chakravarty, T. Singh,
S. Chakravarty & T. Sinha.
For opp.party : M/s. Gautam Mishra, D.K. Patra &
THE HON'BLE SHRI JUSTICE B.K.NAYAK
------------------------------------------------------------------------------------------ Date of hearing : 12.02.2015 : Date of judgment: 25.02.2015 B.K.NAYAK, J. Order dated 29.07.2013 (Annexure-5) passed by the learned Judge, Family Court, Cuttack in C.P. No.153 of 2009 rejecting the petitioner's application for amendment of written statement, has been assailed in this writ application.
2. The opposite party is the husband of the petitioner. The marriage between the parties was solemnized on 11.05.2003 at Cuttack as per Hindu customary rites. The opposite party has filed Civil Proceeding No.153 of 2009 in the Family Court, Cuttack under Section 13(1) (i a) for dissolution of the marriage alleging different forms of cruelty meted out by the petitioner to the opposite party. In the divorce petition, among others, it has been alleged that at the instance of the petitioner and her father, the opposite party allowed the petitioner to pursue her 2 M.S. Course in New York Institute of Technology, USA, for which all expenses were borne by the opposite party, while he was serving in Japan. It is alleged in paragraph-7 of the divorce petition that while pursuing her study in New York, the petitioner got into a relationship with one Sattar, a Bangladeshi National, who called up the opposite party on phone and informed him about his relationship with the petitioner and even sent some photographs of himself and the petitioner to the opposite party over the internet, for which the opposite party felt humiliated.
3. After the trial of the divorce proceeding commenced, the petitioner filed application for amendment of the written statement mainly for taking the plea that in view of opposite party's allegations that the petitioner was having illicit relationship with a Bangladeshi National, the said Bangladeshi National is a necessary party to the proceeding and for non-joinder of the said Bangladeshi National the proceeding is liable to be dismissed.
The proposed amendment was objected to by the opposite party inter alia on the ground that after the commencement of trial of the proceeding, the amendment should not be allowed at the belated stage.
By the impugned order, the learned Judge, Family Court, Cuttack has rejected the amendment application on the ground that the petitioner had not exercised due diligence and, therefore, the amendment after commencement of trial of the proceeding could not be allowed in terms of Order 6, Rule-17, C.P.C.
4. In assailing the impugned order, the learned counsel for the petitioner submitted that the opposite party has sought for divorce on the 3 ground of adultery by alleging illicit relationship of the petitioner with a Bangladeshi National and that under Rule 5(a) of the Orissa High Court Hindu Marriage and Divorce Rules,1956, where divorce on ground of the "respondent living in adultery" has been sought for, the petitioner shall make such person a co-respondent, and that since the petitioner failed to take averment in the written statement that the proceeding was liable to be dismissed for non-impletion of the Bangladeshi National as a co- respondent, the amendment of the written statement to that effect should have been allowed in spite of commencement of trial of the proceeding.
The learned counsel appearing for the opposite party, on the other hand, contended that the opposite party has not sought for divorce on ground of adultery of the petitioner and that 'adultery' is no more a ground for dissolution of marriage under the Hindu Marriage Act. He further urged that the amendment has been sought for after the commencement of trial only to delay the disposal of the proceeding before the court below. It is also submitted by him that the plea sought to be raised by way of amendment of the written statement could have been raised in the written statement itself or at least before the commencement of the trial, if the petitioner would have exercised due diligence, and that she having failed to do so the court has rightly rejected the petition for amendment.
5. It is apparent from the divorce petition that the same has been filed under Section 13(1) (i a), i.e., the ground of cruelty. Prior to the amendment in 1976, Section 13 (1) (i) provided a ground for divorce if the respondent was "living in adultery". The expression "living in adultery" 4 has been substituted by the words, "had voluntary sexual intercourse with any person other than his or her spouse."
In paragraph-7 of the divorce petition, the opposite party does allege that in New York the petitioner (respondent) was having relationship with one Sattar, a Bangladeshi National and on learning the same the opposite party felt humiliated. These allegations have been denied by the petitioner in her written statement. Therefore, at this stage, this Court refrains from making any observation whether such allegations are meant to form a ground of divorce under Section 13(1) (i) or not, lest that would prejudice the parties and the lower court in the trial of the proceeding. Similarly, whether Rule 5 (a) of the Orissa High Court Hindu Marriage and Divorce Rules,1956 requiring the adulterer to be impleaded as a party is mandatory or directory and whether that rule would still apply after Section 13(1) (i) was amended in 1976 or not should not be considered at this stage for the very same reason.
6. The fact remains that admittedly after the commencement of trial of the suit, the amendment application was filed by the petitioner. Proviso added to Rule 17 of Order 6, C.P.C. prohibits allowing amendment after commencement of trial unless the court was satisfied that in spite of due diligence the party could not have raised the plea before the commencement of trial.
7. The apex Court in the decision reported in AIR 2009 SC 1433 (Vidyabai & Ors. V. Padmalatha & Anr.) has held as follows :
"14. It is the primal duty of the court to decide as to whether such an amendment is necessary to decide 5 the real dispute between the parties. Only if such a condition is fulfilled, the amendment is to be allowed.
However, proviso appended to Order VI, Rule 17 of the Code restricts the power of the court. It puts an embargo on exercise of its jurisdiction. The court's jurisdiction, in a case of this nature is limited. Thus, unless the jurisdictional fact, as envisaged therein, is found to be existing, the court will have no jurisdiction at all to allow the amendment of the plaint."
The object of amendment of Rule 17 of Order 6 of the C.P.C.
by limiting the power to amend has been explained by the Supreme Court in the case of Chander Kanta Bansal v. Rajinder Singh Anand, AIR 2008 SC 2234 which is to the following effect :
"10. The entire object of the said amendment is to stall filing of applications for amending a pleading subsequent to the commencement of trial, to avoid surprises and the parties had sufficient knowledge of the other's case. It also helps in checking the delays in filing the applications. Once, the trial commences on the known pleas, it will be very difficult for any side to reconcile. In spite of the same, an exception is made in the newly inserted proviso where it is shown that in spite of due diligence, he could not raise a plea, it is for the court to consider the same. Therefore, it is not a complete bar nor shuts out entertaining of any later application. As stated earlier, the reason for adding proviso is to curtail delay and expedite hearing of cases."
8. In Union of India v. Pramod Gupta (dead) by LRs and others : (2005) 12 SCC 1, the apex Court cautioned that delay or laches 6 on the part of the parties to the proceeding would also be a relevant factor for allowing or disallowing the application for amendment of pleadings.
9. Having regard to the fact that the amendment of written statement was sought for by the petitioner after the commencement of trial and there being nothing on record to show that such plea could not have been raised before the trial commenced by exercising due diligence, this Court finds no infirmity in the impugned order.
10. In any event, the proposed amendment with regard to non- impleation of necessary party and the effect thereof is a question of law, if borne out from the facts pleaded in the plaint, which can be raised at the time of argument keeping in view the ground of divorce alleged and the applicability and the effect of Rule 5(a) of the Orissa High Court Hindu Marriage and Divorce Rules as pointed out by the learned counsel for the petitioner.
11. Be that as it may, since this Court finds no infirmity in the impugned order, the writ petition is dismissed.
Orissa High Court, Cuttack The 25th February , 2015/Gs.