IMPORTANT POINTS
(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 to set up by amendments.
(2) Res Judicata – Decision on a petition under Section 13 of Hindu Marriage Act, 1955 on one ground will not operate as res judicata for filing divorce petition on other grounds as specified in Section 13 of Hindu Marriage Act, 1955.

JUDGMENT

Manish Kumar Nigam, J.—This petition has been filed challenging the order dated 12.12.2022 passed by Principal Judge, Family court, Hamirpur allowing an application for amendment moved by the plaintiff-respondent under Order VI Rule 17 of C.P.C. in Marriage Petition No. 291 of 2020 (Rajnarayan Tripathi Vs. Chitranshi).

2. Brief facts of the case are that plaintiff-respondent filed a petition under Section 13 of the Hindu Marriage Act, 1955 for relief of divorce on the grounds stated in the petition. The defendant-petitioner filed written statement denying the averments made by the plaintiff-respondent in the petition for divorce. On 27.07.2022, following issues were framed by the Principal Judge (Family Court), Hamirpur:-

(Matter in other Language)

3. Thereafter on 13.10.2022, the plaintiff-respondent filed an application under Order VI Rule 17 of C.P.C. seeking amendment in paragraph No. 7, 11 and 14 of the plaint, which was opposed by the defendant-petitioner. The Principal Judge (Family Court) Hamirpur by order dated 12.12.2022 allowed the amendment application on payment of cost of Rs.800/-. Hence the present petition.

4. Contention of learned counsel for the petitioner is that the amendment application was filed by the plaintiff-respondent under Order VI Rule 17 of C.P.C. after framing of issues. According to learned counsel for the petitioner, in view of proviso to Rule 17 of Order VI of C.P.C., the amendment application cannot be filed after the commencement of the trial, unless, the court comes to the conclusion that in spite of due diligence the party could not have raised the matter before the commencement of trial. According to the petitioner, since in view of provisions of Section 10 of the Family Court Act, 1984 read with Section 21 of the Hindu Marriage Act, 1955, procedure as prescribed in C.P.C. is applicable to the proceedings under the Hindu Marriage Act, 1955. It has been further contended by learned counsel for the petitioner that initially the divorce petition was filed on the ground of desertion and cruelty. By the proposed amendment, the plaintiff-respondent has tried to change the cause of action for filing divorce petition by adding averments that petitioner is moving around with her colleague Umakant Namdev and her behaviour with her colleague is immoral and shows that relationship between the petitioner and her colleague is very close, which cannot be said to be friendly relationship and the plaintiff-respondent is aggrieved by the actions of the petitioner. Other facts were also tried to be added by the plaintiff-respondent.

5. It is further contended by learned counsel for the petitioner that once a marriage petition is filed on the basis of one of the grounds mentioned under Section 13 of the Hindu Marriage Act, 1955, by amendment cause of action cannot be changed by adding other grounds given under Section 13 of the Hindu Marriage Act, 1955 for divorce.

6. Per contra, learned counsel for the plaintiff-respondent has submitted that the amendment application was filed immediately after the settlement of issues. Neither of the parties has led evidence after settlement of the issues and therefore, it cannot be said that the hearing of the case has commenced and thus, the proviso to Rule 17 of Order VI will not apply in the present case and the court below has rightly allowed the application filed by the plaintiff-respondent. It has also been contended by learned counsel for the respondent that by the proposed amendment no fresh ground i.e. cause of action is being introduced by the plaintiff-respondent and by the proposed amendment, the respondent wanted to bring on record certain facts which came in existence after filing of the divorce petition.

7. Before considering the rival submissions of learned counsel for the parties, it would be appropriate to consider the relevant statutory provisions in this regard. Section 13 of the Hindu Marriage Act, 1955 is quoted as under:—

“Divorce.—(1) Any marr