Point of Law: In absence of any specific provision of law, Magistrate can allow amendment application filed in a maintenance petition in interest of justice, by exercising discretionary power.

JUDGMENT :

The petitioner is the respondent in MC No.179/2018 pending on the files of the Family Court, Palakkad. The MC is filed by the petitioner's wife and minor child, arrayed as respondents 1 and 2 herein. The challenge in this original petition is against Ext.P4 order of the Family Court, allowing an application for amendment filed by the respondents.

2. Adv. Rajesh Sivaramankutty, learned Counsel for the petitioner contended that, in the absence of any provision for amendment in the Code of Criminal Procedure, the Family Court committed gross illegality in passing Ext.P4 order. Even if the Family Court is taken to be having the power to permit amendment of pleadings, that can only be of formal in nature. In the case at hand the attempt of the respondents is to incorporate new facts and allegations, in order to get over the valid contentions in the objection filed by the petitioner herein.

3. Adv.Sruthy N.Bhat, learned Counsel for the respondents, submitted that the maintenance case, as originally filed, did not contain the requisite details. Hence, the amendment application was filed for supplementing the pleadings already on record. It is contended that, even in the absence of any specific provision, the Family Court is empowered to permit amendment of pleadings in the interest of justice. In support of the contention reliance is placed on the decisions of this Court in Madhavi v. Thupran (1987 (1) KLT 488), of the Madras High Court in Ramarajan v. Krishnan (MANU/TN/0694/2021) & Nallan v. Palaniammal (1998 SCC OnLine Mad 1558) and of the Orissa High Court in Sabita Sahoo v. Khirod Kumar Sahoo (1990 SCC OnLine Ori.433).

4. The question whether an application for amendment could be allowed in the absence of any provision in the Code enabling the amendment of pleadings, was considered and answered by the Supreme Court in U.P. Pollution Control Board v. Modi Distillery and Others [(1987) 3 SCC 684]. Therein, the complaint under Section 200 of Cr.P.C was filed without impleading. This infirmity was sought to be cured through an impleadment application. The trial court allowed the impleadment. That order was challenged by the Directors of the company, who are arrayed as accused. The challenge was upheld by the High Court, but the Apex Court interfered with that judgment and found fault with the Single Judge for having focused only on the technical flaw in the complaint. It was held that the infirmity was one which could be easily cured by remitting the matter to the trial court with a direction to make the requisite amendment, by arraying the controlling company as an accused. The decision in U.P. Pollution Control Board (supra) was referred and approved in S.R. Sukumar v. S. Sunaad Raghuram [(2015) 9 SCC 609], the relevant portion of which reads as under;

“19. What is discernible from U.P. Pollution Control Board case [(1987) 3 SCC 684 : 1987 SCC (Cri) 632] is that an easily curable legal infirmity could be cured by means of a formal application for amendment. If the amendment sought to be made relates to a simple infirmity which is curable by means of a formal amendment and by allowing such amendment, no prejudice could be caused to the other side, notwithstanding the fact that there is no enabling provision in the Code for entertaining such amendment, the court may permit such an amendment to be made. On the contrary, if the amendment sought to be made in the complaint does not relate either to a curable infirmity or the same cannot be corrected by a formal amendment or if there is likelihood of prejudice to the other side, then the court shall not allow such amendment in the complaint.”

5. This Court had occasion to consider the power of criminal courts to permit amendment of pleadings in maintenance cases in Madhavi (supra). Therein, the petitioner had mistakenly shown her name as 'Malathi' instead of 'Madhavi'. On realising the mistake, she filed a petition seeking permission to correct her name. That petition was dismissed