Back
Gujarat High Court
Judgename :K.M.MEHTA
SHILPABEN @ GEETABEN RUCHIR J.DESAI - Appellant
Versus
RUCHIR JAYANTIBHAI DESAI - Respondent
SPECIAL CIVIL APPLICATION 2100 Of 2007
Decided On : 07/12/2007
HINDU MARRIAGE ACT - SECTION 5(II)(B), 13(1)(III) - AMENDMENT OF PLEADINGS - ORDER 6 RULE 17 CPC - COURT ANALYSIS AND CONCLUSION: The court held that the amendment application filed by the husband in a Hindu Marriage Petition seeking to add the ground of psychopathic disorder as a ground for divorce was maintainable and allowed the same. The court observed that the amendment did not change the nature of the suit, cause prejudice to the wife, or alter the cause of action. The court also noted that the delay in filing the amendment application was properly compensated for by costs.
Fact of the Case:
The husband filed a petition for divorce under Section 13(1)(iii) of the Hindu Marriage Act on the ground that the wife was incurably of unsound mind or had been suffering continuously or intermittently from mental disorder. The wife filed a reply denying the allegations and claiming maintenance. The husband then filed an application under Order 6 Rule 17 of the Code of Civil Procedure seeking to amend the petition to add the ground of psychopathic disorder as a ground for divorce. The wife opposed the amendment application, arguing that it was barred by limitation and would cause prejudice to her.
Finding of the Court:
The court held that the amendment application was maintainable and allowed the same. The court observed that the amendment did not change the nature of the suit, cause prejudice to the wife, or alter the cause of action. The court also noted that the delay in filing the amendment application was properly compensated for by costs.
Issues: 1. Whether the amendment application was barred by limitation? 2. Whether the amendment would cause prejudice to the wife? 3. Whether the amendment would alter the cause of action?
Ratio Decidendi: 1. The court held that the amendment application was not barred by limitation. The court observed that the amendment did not introduce a new cause of action, but merely added a ground for divorce that was consistent with the original petition. 2. The court held that the amendment would not cause prejudice to the wife. The court noted that the wife was aware of the husband's allegations of mental illness and had already filed a reply to the petition. The court also noted that the husband was willing to pay costs to compensate the wife for any inconvenience caused by the amendment. 3. The court held that the amendment would not alter the cause of action. The court observed that the cause of action for divorce remained the same, namely, the wife's mental illness.
Final Decision: The court allowed the husband's amendment application and directed the trial court to proceed with the hearing of the petition.
( 2 ) SHILPABEN @ Geetaben, the petitioner herein has filed this petition under Article 227 of the Constitution of India, with a prayer that this Court may be pleased to issue a writ of mandamus or any other appropriate writ, order or direction quashing and setting aside the order dated 30th December, 2006, passed by the learned Principal Senior Civil Judge, Surat in Hindu Marriage Petition No. 25 of 2004. By the impugned order, the learned Judge has allowed the application for amendment filed in the Hindu Marriage Petition filed by the respondent husband in this behalf.
( 3 ) THIS petition was filed on 19th January, 2007, and this Court issued notice on 22nd January, 2007, pursuant to which, the other side (husband) appeared and filed affidavit-in-reply. The petitioner also filed affidavit-in-rejoinder in this behalf.
( 4 ) THE facts giving rise to filing of the present petition are as under:
4. 1 The marriage between the petitioner wife and the respondent husband was solemnised on 16th May, 2000, as per Hindu custom at Gandevi at Surat. After the marriage, they were living happily. The petitioner has passed B. Ed. with First Class, M. A. with English and was serving as a teacher in the Secondary School prior to her marriage. The respondent husband is a Chartered Accountant.
4. 2 It is the case of the parties that initially there was cordial relation between husband and wife, however, thereafter difference and dispute arose between the husband and wife, and according to wife, due to misbehaviour of stepmother of husband, some difference and dispute arose and both husband and wife decided to live separately after three months of their marriage. According to husband, the wife was of quarreling nature and was not prepared to live with the parents. She was not co-operating with her mother-in-law. According to husband, the wife had some mental problem and she was not properly behaving with in laws. According to husband, from May 2003, the situation worsened and ultimately the husband had addressed a notice on 27. 9. 2004 as per Hindu Provisions Act for obtaining divorce. According to husband, the wife has not properly replied on 2. 10. 2004 the said notice to the husband in this behalf.
4. 2a As per husband averments, during those periods, the wife was examined by Dr. Mukul Choksi at Surat as well as Dr. Jayesh at Navsari also in connection with the mental health of the wife.
4. 2b It is the case of the husband that thereafter husband was constrained to file application for divorce on 8. 10. 2004 wherein allegations which have been set out earlier has been set out in the said application. According to husband, the wife had not given proper qualification at the time of marriage. She has also not disclosed some physical as well as mental illness at the time of marriage and that is how she has been examined by Dr. Mukul Choksi as stated earlier. From May 2003 there was dispute between husband and wife arose and thereafter the husband has made several attempts to call the wife but the wife did not come back to the matrimonial home. According to husband, the wife has played fraud with him and not properly set out the correct facts at the time of marriage.
4. 2c In the said matter the husband prayed that the marriage may be dissolved which took place between husband and wife on 16. 5. 2003 and the Court may pass a decree of divorce. Against that the wife replied the said petition denying all facts in this behalf.
4. 2d Meanwhile the wife filed an application being application No. 22/04 for claiming maintenance against the husband. It appears that in the said proceedings the wife was examined somewhere in February 2006 and husband has been examined somewhere in December 2006.
4. 2e Thereafter the husband filed application under Order 6 Rule 17 of the CPC on 11. 5. 2
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
