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2018 Supreme(Bom) 2038
IN THE HIGH COURT OF BOMBAY, GOA BENCH
C.V. Bhadang, J.
Yogesh Thakur - Appellant
Vs.
Tejal Y. Thakur - Respondent
Writ Petition No. 138 of 2018
Decided On : 08-08-2018
A. Agni, Adv., Elma Estibeiro, Adv., J.P. Mulgaonkar, Adv.
Headnote:
Constitution of India, 1950 - Article 39 - Hindu Marriage Act, 1955 - Section 12 - Special Marriage Act - Section 36 – Divorce - Petitioner and respondent were married somewhere and marriage is registered in office of civil registrar - Second signature was made somewhere and civil registrar has issued a certificate of marriage certifying registration of marriage - Unfortunately marriage ran into rough weather shortly after its solemnization - According to petitioner marriage was not consummated on first night on account of frigidity of respondent - According to petitioner respondent was a believer in sect of brahmakumaris and was against of allowing any physical relations being kept - As a result there were no physical relationships between petitioner and respondent and respondent was unable to fulfill any marital obligations - It is in these circumstances that petitioner filed matrimonial petition for annulment of marriage which is pending before learned senior civil judge - It is case made out in petition that petitioner hails from a respected family of state although of matrimonial petition it is claimed that mother of petitioner was from a village as well as father of petitioner was born - Incidentally father of petitioner has expired – Held, Whether amendment sought is imperative for proper and effective adjudication of case - Whether application for amendment is bona fide or mala fide - Amendment should not cause such prejudice to other side which cannot be compensated adequately in terms of money - Refusing amendment would in fact lead to injustice or lead to multiple litigation - Whether proposed amendment constitutionally or fundamentally changes nature and character of case and as a general rule court should decline amendments if a fresh suit on amended claims would be barred by limitation on date of application - Proposed amendment in my humble view cannot be said to be imperative for proper and effective adjudication of case - At this stage it is necessary to note that neither of parties could be allowed to enlarge scope of petition before trial court and should restrict same to issue of annulment of marriage as claimed on behalf of petitioner and claim made by respondent in counterclaim for return of certain articles and gold ornaments - Petition is dismissed.
C. V. Bhadang, J.
The challenge in this petition, is to the order dated 11.01.2018, passed by the learned Senior Civil Judge at Panaji, in Matrimonial Petition No. 5/2012/B. By the impugned order, an application Exhibit-D/74, filed by the petitioner, for amendment of the petition, has been dismissed.
2. The petitioner and the respondent were married in Goa, somewhere in October 2010 and the marriage is registered in the office of the Civil Registrar at Tiswadi, Goa. The second signature was made somewhere on 24.11.2010 and the Civil Registrar has issued a certificate of marriage bearing no. 123, certifying the registration of marriage. Unfortunately, the marriage ran into rough weather, shortly after its solemnization. According to the petitioner, the marriage was not consummated on the first night on account of the frigidity of the respondent. According to the petitioner, the respondent was a believer in the sect of "Brahmakumaris" and was against of allowing any physical relations being kept. As a result, there were no physical relationships between the petitioner and the respondent and the respondent was unable to fulfill any marital obligations. It is in these circumstances that the petitioner filed Matrimonial Petition No. 5/2012/B, for annulment of marriage, which is pending before the learned Senior Civil Judge at Panaji. It is the case made out in the petition that the petitioner hails from a respected family of the State of Goa, although, in para 2 of the matrimonial petition, it is claimed that the mother of the petitioner was from a village in Maharashtra, as well as the father of the petitioner was born at Mhapan village in Maharashtra on 23.10.1940. Incidentally, the father of the petitioner has expired on 10.06.2017.
3. The respondent resisted the petition and has raised a counterclaim for return of her gold ornaments and other articles, given in marriage and is also seeking maintenance of Rs. 30,000/- per month.
4. The petitioner examined himself on 17.06.2017 and was under cross examination on behalf of the respondent.
5. On 12.09.2017, the petitioner filed an application (Exhibit-D/74), for amendment of the plaint, in the following terms:
"To be added in paragraph 1a
1a. The plaintiff states that though his family is based in Goa, his ancestors are not of Goan origin. The plaintiff states that his family originally hails from Mhapan Village in the State of Maharashtra. The father of the petitioner was born at Mhapan on 23.10.1940. The plaintiff states that he is therefore governed by the provisions of the Hindu Marriage Act and as such is filing the present suit for annulment of his marriage with the defendant under Section 12 1a and c of the Hindu Marriage Act.
To be added in paragraph 68a
The petitioner is therefore entitled to a judgment and decree annulling his marriage with the defendant under Section 12 1a and c of the Hindu Marriage Act.
To be added in prayer clause a. after the word defendant
under Section 12 1a and c of the Hindu Marriage Act."
6. It was contended on behalf of the petitioner that although, his family is based in Goa, his ancestors are not goans and his family hails from Mhapan village of Maharashtra and therefore, he is governed by Hindu Marriage Act. The petitioner, therefore, sought amendment of the plaint, inter alia, seeking the decree of annulment of marriage under Section 12(1)(a) and (c) of the Hindu Marriage Act.
7. The respondent opposed the application. It was contended that the marriage was solemnized under the Family Laws, applicable to the State of Goa and both the parties are governed by the Family Laws and Law of Divorce. It was contended that the Law of Communion of Assets is applicable and the parties were aware that they are governed under the marriage and succession laws applicable in Goa. It was contended that the petition does not contain averments that the marriage was performed or the parties are governed by the Hindu Marriage Act. It is contended that the applicat
