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IN THE HIGH COURT OF JUDICATURE AT PATNA
Sunil Dutta Mishra, J.
Pankaj Kumar Paswan, son of Gaurichand Paswan - Petitioner
Versus
Savita Kumari, wife of Sri Pankaj Kumar Paswan - Respondent
Civil Miscellaneous Jurisdiction No.1103 of 2018
Decided On : 17-02-2023
Amendment - Matrimonial Suit - Hindu Marriage Act, 1955, Section 13 - 11, 12 - The court discussed the proposed amendment to the petition under Sections 11 and 12 of the Hindu Marriage Act, rejected the amendment petition due to inordinate delay and the nature of prayer change. The court referred to key legal principles from Revajeetu Builders and Developers Vs. Narayan Swamy and Sons and Others (2009) 10 SCC 84 and Arvind Kumar Rai Vs. Guria Kumari (AIR 2019 (1) PLJR 218) to support its decision.
Fact of the Case:
The petitioner filed a Matrimonial Suit for divorce under Section 13 of the Hindu Marriage Act, 1955, alleging adultery by the respondent before the marriage. The petitioner later sought to amend the petition to include Sections 11 and 12 of the Act, which was rejected by the trial court.
Finding of the Court:
The court found that the proposed amendment was filed after a significant delay, would change the nature of the prayer, and would be barred by the limitation period prescribed by the Hindu Marriage Act. The court dismissed the Civil Miscellaneous Application.
Issues: The issues included the admissibility of the proposed amendment, the impact of the delay in filing the amendment petition, and the potential change in the nature of the suit.
Ratio Decidendi: The court applied the principles from Revajeetu Builders and Developers case and Arvind Kumar Rai case to determine the admissibility of the proposed amendment, considering factors such as the imperative need for the amendment, bona fide nature of the application, prejudice to the other party, and the constitutional or fundamental change in the nature of the case.
Final Decision: The Civil Miscellaneous Application seeking amendment to the petition was dismissed by the court.
Certainly. Based on the provided legal document, the key points are as follows:
The court emphasized the importance of timely and bona fide amendments to pleadings, considering their impact on the case's nature and the rights of parties involved (!) (!) (!) .
The case involved a matrimonial suit filed under the Hindu Marriage Act, where the petitioner sought to amend the original petition to include additional sections of the Act, specifically Sections 11 and 12, which pertain to declarations of marriage as void or voidable (!) (!) .
The proposed amendment was rejected primarily due to the significant delay of seven years after the filing of the original suit, the change in the nature of the prayer from divorce to declaration of marriage as void, and the fact that such an amendment would be barred by the limitation period (!) (!) .
The court considered whether the amendment was necessary for proper adjudication, bona fide, and whether it would cause prejudice to the other party. It concluded that the amendment was neither timely nor bona fide, and that allowing it would fundamentally alter the case's character (!) (!) (!) .
The court also noted that even if a wrong legal provision was initially cited, it could be considered a typographical error unless the amendment fundamentally changes the case's nature, which was not the situation here (!) .
The final decision was to dismiss the civil miscellaneous application seeking the amendment, affirming that the delay and the change in the prayer's nature justified the rejection (!) (!) .
The court underscored that amendments should be exercised with judicial discretion, exercising caution to prevent injustice, especially when they are not bona fide or are intended to cause prejudice (!) (!) .
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JUDGMENT :
Heard learned counsel for the parties.
2. This Application has been filed against the order dated 05.06.2018 passed by the Court of learned Principal Judge, Family Court, Muzaffarpur in Matrimonial Case no. 143/2009 by which the amendment petition dated 16.07.2016 filed on behalf of petitioner has been rejected.
3. The facts, in brief, are that the petitioner filed a Matrimonial Suit No. 143 of 2009 on 21.05.2009 in the Court of learned Principal Judge, Family Court, Muzaffarpur against his wife/respondent herein for divorce under Section 13 of the Hindu Marriage Act, 1955 mainly on the ground of adultery.
4. In the petition, it is stated that the marriage was solemnized with the respondent on 19.05.2008 as per the Hindu rites and rituals and after marriage, the petitioner and respondent started living together at place of applicant but they lived together only four days and bidagari was performed. It is alleged that on 05.11.2008 the applicant heard rumor in the village that respondent was pregnant and has given birth to a male child within 6 months of the marriage. It is alleged that respondent-wife was leading adulterous life before the solemnization of the marriage and became pregnant. Earlier the petitioner had filed Matrimonial Suit No. 307/2008 within one year of marriage with leave application which was rejected and suit was dismissed. Then after completion of one year from the date of marriage, the instant divorce case has been filed. The divorce petition was amended later on as per order dated 27.05.2013 incorporating the fact that the respondent has filed dowry-torture case against the petitioner and his parents who were taken into custody for a long time.
5. In written statement, it is stated that respondent lived with the petitioner at his house for five months and due to consummation of marriage, the respondent became pregnant but she was tortured for dowry and had given birth to an unmatured child due to assault.
6. A petition dated 03.06.2016 filed by the respondent that the divorce petition is not maintainable on the ground that there is no provision under section 13 of the Hindu Marriage Act to get a decree of divorce on the ground that wife was guilty of adultery before the marriage. The Court vide order dated 12.03.2018 rejected the said petition vide order dated 12.03.2018 on the ground that the case is already admitted.
7. An application dated 16.07.2016 filed by the petitioner in the trial Court for amending the petition with prayer to insert Sections 11 and 12 of the Hindu Marriage Act instead of Section 13 of the Hindu Marriage Act and also to amend portion (a) of the relief that “to pass a decree for declaration of marriage of applicant with respondent is void and voidable” instead of the prayer that “the marriage of the appellant with respondent be dissolved”. After hearing both the parties, the trial court rejected the said amendment petition on the ground that the proposed amendment petition has been filed after seven years and certainly the same will change the nature of the case.
8. Learned counsel for the petitioner submits that the divorce petition was filed mainly on the ground of adultery before the marriage and it is appropriate that the said petition be decided under Sections 11 and 12 of the Hindu Marriage Act and the Amendment will not change the nature of the suit and will not cause any prejudice to the other party as the facts of leading adulterous life of the respondent before the marriage has already been disclosed in the plaint and accordingly, it is in the interest of justice that the amendment petition may be allowed. He also submits that the wrong provision of law will not make the entire case non-justiciable and on this point he has cited the judgment of Hon’ble Division Bench of this Court reported in 2019 (1) PLJR 219 (Ravindra Kumar Rai vs. Gudiya Rai).
9. On the other hand, learned counsel for the respondent submits that presently the evidence of both the parties have alrea
The court's decision emphasized the importance of timely and bona fide amendments to pleadings, considering the impact on the nature of the case and the rights of the parties involved.
Trial commences upon filing of affidavit in lieu of evidence; consequently, amendments beyond this stage require established due diligence.
(1) Amendment in Pleadings (Marriage Petition) – Not permitting amendment subsequent to commencement of trial is with object that when evidence is led on pleadings in a case, no new case be allowed t....
The main legal point established in the judgment is the significance of due diligence in seeking amendments to pleadings, especially after the trial has commenced, to prevent delays in adjudication.
The court has the discretion to allow the amendment of pleadings even after the trial is completed, provided it does not cause delay to the proceedings.
Rejection of plaint – There cannot be any bar in joint petition under Sections 12 and 13 of Hindu Marriage Act claiming relief in alternative – Petition cannot be rejected in part and suit as a whole....
Divorce on adultery requires naming and impleading adulterer with pleadings; court cannot modify grounds suo motu from stray evidence.
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