The main legal point established in the judgment is that an application filed under Section 9 of the Hindu Marriage Act, 1955, cannot be allowed to be converted into an application under Section 13 of the Act subsequently by way of amendment.

This writ petition has been transferred from the High Court of Calcutta by the order of the Supreme Court dated 03-1-2011. Before the Calcutta High Court, the petitioner the Wife) had challenged the order dated 03-11-2009 passed (hereinafter referred to as by the 14th Additional Court of District Judge at Alipore, South 24-Parganas in Matrimonial Suit No. 123/2009 whereby in a proceeding u/S. 9 of the Hindu Marriage Act, 1955 (in short the Act of 1955), for restitution of conjugal rights, the application for amendment filed under Sections 13A, 21 of the Act of 1955 read with Order VI, Rule 17, CPC for conversion of the proceedings into the proceedings for divorce by way of amendment, has been allowed.

2. Briefly stated, the facts of this case are that the husband (hereinafter referred to as Husband) filed an application u/S. 9 of the Act of 1955 for restitution of conjugal rights in the month of April, 2007 stating therein that his marriage was solemnised on 29-6-2005 at Calcutta. Thereafter, the Wife went to her parental house in the month of February, 2006 and started residing there without caring and taking any information about the Husband. Thereafter again, the Wife returned to her matrimonial home in Calcutta and resumed conjugal relationship with the husband in March, 2006 for some days. Finally, the Wife left her matrimonial home on 10-8-2006 without any justification, therefore, the relief of restitution of conjugal rights was claimed. The said proceedings were registered as Matrimonial Suit No. 772/2007 before the Distt. Judge, Alipore and the said suit was transferred to two different Courts and thereafter, the same was pending before the 14th Addl. Distt. Judge, at Alipore and was registered as Matrimonial Suit No. 123 of 2009, at the time of filing application for amendment.

3. The Husband filed an application for amendment u/Ss. 13A and 21 of the Act of 1955 read with Order VI, Rule 17, CPC on 7-5-2009 seeking conversion of the proceedings u/S. 9 of the Act of 1955 for restitution of conjugal rights into divorce u/S. 13 of the Act of 1955. In the amended plaint, divorce has been sought on the ground of desertion and cruelty. The trial Court at Alipare on 03-11-2009 allowed the application for amendment and converted the Matrimonial Suit No. 123/2009 for restitution of conjugal rights into divorce by considering the fact that it is worth remembering that the rule that no amendment altering the character of a suit can be allowed, is not, however, in inflexible and in exceptional cases, it has been granted to avoid multiplicity of proceedings of suits for the purpose of determining the real question in controversy and further, an amendment in the pleadings adding a new cause of action, or a new defence should be allowed, if it can be made without injustice to the other side. Against the aforesaid order, the Wife filed Writ Petition No. 4093/2009 before the Calcutta High Court and as stated above, the same was transferred to this Court vide order dated 3-1-2011 by the Supreme Court. It is also relevant to mention here that the proceeding pending before the Additional District Judge No. 14, Alipore, South 24 Parganas, Calcutta was already transferred to the Family Court at Jaipur vide order of the Supreme Court dated 1-9-2010 with a direction to the Family Court to dispose of the matter, as expeditiously as possible, in any event within one year from the date of communication of that order. The present writ petition on transfer has been received in this Court on 2-4-2011 and registered as SB Civil Writ Petition No. 5569/2011.

4. Submission of Mr. Suresh Sahni, counsel for the Wife is that the trial Court has committed serious error in converting the relief of restitution of conjugal rights into the relief of divorce by way of amendment, which has virtually changed the very nature of the suit/application and further caused serious prejudice to the Wife, which leads to injustice, whose acts/omissions referred with