Trial commences upon filing of affidavit in lieu of evidence; consequently, amendments beyond this stage require established due diligence.

JUDGMENT :

MANJUSHA DESHPANDE, J.

1. Rule. Rule made returnable forthwith, the Writ Petition is taken up for final disposal with consent of the parties.

2. The Petitioner is challenging the Order dated 22^nd November 2023, passed by the Judge, Family Court, Below Exhibit – 73 in Petition No. A 534 of 2014, whereby the application for amendment of plaint as provided under Order VI Rule 17 of the Code of Civil Procedure , 1908 filed by the present Respondent has been allowed.

3. The Petitioner is the wife of the Respondent herein. They were married on 19^th February 2006. After her marriage she started residing with her husband. Because of the matrimonial discord, the Respondent husband filed a petition for divorce under Section 13(1)(i-a)(i-b) of the Hindu Marriage Act. The divorce proceedings were filed on 08^th December 2014. The Petitioner filed her reply to the Petition for divorce on 02^nd November 2015. Thereafter the affidavit in lieu of evidence was filed by the applicant husband on 07^th October 2017. After filing of affidavit in lieu of evidence, the Respondent herein filed an application under Order VI Rule 17 of the Code of Civil Procedure, seeking amendment in the plaint. The applicant wanted to make additions in the pleadings to the effect that, the Petitioner was already married, when respondent married her. She married Respondent without obtaining divorce from her husband of previous marriage.

4. It was contended by the Respondent husband that, the fact of earlier marriage of wife was disclosed by her in Criminal Application No. 302 of 2015, filed by her and she has also admitted it in the FIR which was filed on 17^th June 2015, that her marriage with the Respondent husband is the second marriage. The Respondent is claiming that he is cheated, due to suppression of material fact by wife, marriage between them needs to be declared null and void. Accordingly, the Respondent is also seeking leave to add prayer clause that, the marriage between the Petitioner and Respondent dated 19^th February 2006 should be declared as null and void.

5. This application seeking amendment as per Order VI Rule 17 was filed by the Respondent husband on 13^th April 2023. The application was opposed by the present Petitioner by filing the reply to the application on 09^th June 2023. Upon hearing the parties, the Judge, Family Court, Nashik has allowed the application filed by the Respondent seeking amendment in the plaint vide Order dated 22^nd November 2023, it is this order which is being assailed before this Court.

6. Heard learned Counsel for the respective parties.

7. Mr. Pujari, learned counsel appearing for the Petitioner submits that, in fact the Respondent husband was very much aware about the earlier marriage of the Petitioner. He has drawn the attention of this Court to the averments made in the petition for divorce filed by the Respondent husband. In paragraph 8 of the affidavit in lieu of evidence, the Respondent herein has categorically stated that, he came to know about her previous marriage from her relatives. It is stated that, while fixing the marriage neither the present Petitioner nor her relatives had informed the Respondent about her previous marriage.

8. According to learned counsel for the Petitioner, the petition for divorce was filed on 08^th December 2014 and the affidavit in support of evidence has been filed on 07^th October 2017. It is settled position of law that, trial commences upon filing of affidavit in lieu of evidence by the witne