Hon’ble Dinesh Kumar Singh-I, J.—The judgment and order dated 2 August 2017 passed by the Principal Judge, Family Court, Allahabad in Matrimonial Case No. 812 of 2013, (Sandeep Asthana v. Smt. Preeti), under Section 9 of the Hindu Marriage Act 1956 (the Act) has been assailed in this First Appeal, whereby an amendment application moved under Order 6 rule 17 read-with Section 151 of the Code of Civil Procedure 1908 (CPC) has been allowed permitting the case to be treated to have been filed under Section 13 of the Act.

2. The short point that has arisen for consideration in this appeal is whether a case filed under Section 9 of the Act for restitution of conjugal rights by a party can be permitted to be converted to one having been filed under Section 13 of the Act by allowing the amendment application moved under Order 6 Rule 17 CPC.

3. For adjudicating on the aforesaid point, it would be germane to refer to the facts of the case in brief which are as follows.

4. The respondent-plaintiff filed Matrimonial Case No. 812 of 2013 (Sandeep Asthana v. Smt. Preeti) under Section 9 of the Act, for restitution of conjugal rights, alleging that he had married the appellant-defendant on 25 April 2012 according to Hindu rites at Allahabad. Soon after the dinner ceremony organised on 27 April 2012, a misunderstanding developed between the two resulting in tense relations between them which were sought to be removed by him, but it did not happen and petty arguments between them would result in altercations. This situation became worse when the respondent started using derogatory language for his family members and started taunting him and boasted that she was earning a handsome amount. The respondent continued to endure all this only to ensure that family life proceeded happily and smoothly. She started making undue demands, which though were sought to be fulfilled, but not to her satisfaction. She even expressed her repugnance to the visit of his parents at the Noida house where they were staying after marriage, so much so that he had to send back his parents to Allahabad. Gradually her brother-in-law, in whose company, the respondent was employed started interfering in their life. Her demands increased and she wanted a car and a flat. To appease her, he even called her mother to look after her when she was pregnant and she delivered a male child on 13 February 2013. Her mother used to instigate her which made her allege that she had married a beggar and would not permit him to even touch the child. In the second week of the month of March 2013 she fought with him, abused him and threatened to implicate him in a false case of dowry. Even his parents were threatened on phone but all this was tolerated to secure the future of the child. She left for her parent’s house with bag and baggage on 1 June 2013 taking with her the entire jewellery without even informing him and also threatened that she would implicate him and his family members in a dowry demand case.

5. The petition under Section 9 of the Act was filed by the husband on 8 July 2013. On 3 March 2017, the husband moved an application under Order 6 Rule 17 readwith Section 151 of CPC seeking amendment in the plaint with consequential relief to the effect that the relief for divorce under Section 13 of the Act be permitted to be substituted in place of the relief for restitution of conjugal rights under Section 9 of the Act, because she had lodged a false report under Section 498 A, 323, 504, 506 of the Indian Penal Code and ¾ of Dowry Prohibition Act at Police Station, Mahila in District Gautam Buddha Nagar against his parents (his ailing father being 75 years old), his cousin who resided in Allahabad, which made him believe that now it was impossible for him to live with her and that it was appropriate to seek a dissolution of marriage on the ground of cruelty.

6. From the side of wife, though no written statement had been filed but an objection was filed against the amendment