Point of Law: Amendment - proposed amendment should not have the tendency of causing any prejudice to the other side which is nothing but to put the case in the Clause (3) of the above instances.

JUDGMENT :

MANGESH S. PATIL, J.

1. Heard. Rule. The learned advocate Mr. Karpe waives service for the respondent. At the request of the parties, the matter is heard finally at the stage of admission.

2. The petitioner who has filed a proceeding for annulment of marriage styling it to be a petition under Section 12 of the Hindu Marriage Act is aggrieved by the rejection of her application for amendment of the petition (Exhibit-48) seeking to add a paragraph so as to insert the averments in respect of impotency of the respondent husband.

3. After having heard both the sides at length and perusal of the record and the proceeding, it transpires that the petitioner did file the petition styling it to be one for annulment of marriage under Section 12. A minute perusal of her petition would reveal that she made a strenuous attempt to allege that the respondent was all the while unwilling to consummate the marriage. She has narrated the episodes wherein he denied to have sex. Conspicuously, though it could have been in her mind to make up a ground under Section 12(1)(a) of the Hindu Marriage Act seeking annulment on the ground of impotency of the respondent, the petition clearly lacks specific and clear averments so as to make out that ground.

4. Conspicuously, even the trial court seems to have framed the issues oblivious of the nature of the proceeding. He has framed the issues in vernacular which can be roughly translated as under:

A bare perusal of the issues would clearly demonstrate that the learned Judge has framed the issues unmindful of the provision under which the relief was being claimed by the petitioner.

5. There is no material to show that the petitioner had ever made any attempt to seek the issues to be recast.

6. Again, admittedly, the application for amendment was filed when the matter was reserved for hearing final arguments.

7. The petitioner by way of amendment sought to add following paragraph:

“13-A. That thereafter also with a hope that the behavior of respondent will improve on some day or the other, the petitioner kept on trying communicating and having sexual relationship with the respondent however; to the shocking of petitioner, the respondent rudely and clearly uttered that, he is not interested in women and has different choice of sex. He clearly told petitioner that, he is unable to establish sexual relationship with her as he is incapable of same. He said that, he is interested in males than females for satisfying sexual desire. Thus it reveled to the petitioner that, the respondent is sexually impotent and unable to consummate the marriage. However; on multiple occasions petitioner literally begged respondent to seek medical treatment for this cause with a hope to consummate the marriage however, the respondent shown utter disregard to this suggestion of petitioner and continued depriving her from fulfilling sexual obligation.”

8. Perusal of the testimony of the petitioner would reveal that during her cross-examination in paragraph No. 2 she was specifically put the questions and she admitted the facts that she had failed to clearly aver that the respondent was impotent. She also admitted that the petition also did not contain any averment about his incapability to have sex. She also admitted that there are no averments that because of his inability to consummate the marriage that it was not consummated. It is therefore quite apparent that after such replies perhaps she had become alert and has tried to make amends to include the specific averment so as to make out the ground for se