2021 Supreme(SC) 593

SUPREME COURT OF INDIA
M.R. Shah, A.S. Bopanna, JJ.
Nitaben Dinesh Patel - Appellant
Versus
Dinesh Dahyabhai Patel - Respondent
Civil Appeal Nos. 5901-5902 of 2021
Decided On : 07-10-2021

IMPORTANT POINTS
(1) No application for amendment shall be allowed after trial has commenced unless court comes to conclusion that in spite of due diligence party could not have raised matter before commencement of trial.
(2) Under provisions of Hindu Marriage Act, relief of divorce, judicial separation etc. can be between husband and wife only and cannot extend to third party.

Headnote:

(A) Civil Procedure Code, 1908 – Order VI Rule 17 – Amendment of written statement – No application for amendment shall be allowed after trial has commenced unless court comes to conclusion that in spite of due diligence party could not have raised matter before commencement of trial – If some facts have come to knowledge subsequently and subsequent to commencement of trial, may be during course of trial and if it is found that it is necessary for the purpose of determining real questions in controversy between parties, on a fair reading of Order VI Rule 17 CPC, such an application for amendment can be allowed even after trial has commenced – Appeals Partly allowed. (Para 7)

(B) Hindu Marriage Act, 1955 – Section 23A – Civil Procedure Code, 1908 – Order VI Rule 17 – Divorce suit – Amendment of written statement – By impugned judgment and order, High Court has dismissed entire application mainly on the ground that once a written statement is filed and trial has commenced, application to amend written statement in exercise of powers under Order VI Rule 17 CPC is not required to be entertained and that in view of Order VIII Rule 6A CPC, defendant can pray for a counter claim against plaintiff either before or after filing of suit but before defendant has delivered his defence (written statement) or before time limited for delivering his defence has expired – Right from very beginning, it was specific case on behalf of appellant that respondent-husband is living in adultery with another woman – Though, respondent-husband had married with that woman, he did not disclose correct and true facts and suppressed material facts – Restrictions as per proviso to Order VI Rule 17 CPC shall not be applicable. (Paras 5 and 7)

(C) Hindu Marriage Act, 1955 – Section 23A – Civil Procedure Code, 1908 – Order VI Rule 17 – Counter-claim by defendant – Under provisions of Hindu Marriage Act, relief of divorce, judicial separation etc. can be between husband and wife only and cannot extend to third party – By way of counter-claim, respondent in any proceedings for divorce or judicial separation or restitution of conjugal rights can pray for relief by way of counter-claim only those reliefs which can be prayed and/or granted under Hindu Marriage Act, namely, relief under Section 9 (Restitution of conjugal rights); Section 10(judicial separation); Sections 11 & 12(declaration of marriage between petitioner and respondent void) and Section 13 (divorce) – Respondent to proceedings can pray for aforesaid reliefs only by way of counter claim and that too between petitioner and respondent – No relief can be prayed qua third party. (Para 9)

Facts of the case:

Feeling aggrieved and dissatisfied with the impugned common judgment and order dated 27.09.2019 passed by the High Court of Gujarat at Ahmedabad in SCA No. 11379/2018 and SCA No. 16101/2018, by which the High Court has dismissed writ petition being SCA No. 11379/2018 and has allowed SCA No. 16101/2018 and has quashed and set aside the order passed by Family Court dated 8.5.2018 passed below the application (Exhibit 281) in Family Suit No. 862/2007, the original writ petitioner in SCA No. 11379/2018 and original respondent in SCA No. 16101/2018 has preferred the present appeals.

Findings of Court:

Appellant herein – original defendant is permitted to amend the written statement as prayed qua Paras 35 and 36. The amendment sought by the appellant qua para 37 is hereby dismissed. However, it will be open for appellant to initiate independent proceedings by way of filing a substantive suit and/or any other remedy which may be available to appellant under law with respect to prayer sought qua Para 37.

Result : Appeals Partly allowed.