Court No. - 6

Reserved

A.F.R.

Case :- CIVIL REVISION No. - 80 of 2022

Revisionist :- Smt Jyoti

Opposite Party :- Ankit Dubey

Counsel for Revisionist :- Mr. Gaurav Tripathi, Advocate

Counsel for Opposite Party :- Mr. Puneet Bhadauriya, Advocate

Hon'ble J.J. Munir,J.

This civil revision is directed against an order of Smt. Renu

Singh, Additional Principal Judge, Family Court, Etawah dated May

the 31^st, 2022, allowing the respondent's application, seeking

amendment to his petition for divorce under Section 13 of the

Hindu Marriage Act, 1955 (for short, 'the HMA').

2.

A petition under Section 13 of HMA was instituted by the sole

respondent, Ankit Dubey against the revisionist, Smt. Jyoti Dubey

before the Principal Judge, Family Court, Agra, which was

numbered on the file of the Principal Judge, Family Court,

aforesaid as HM Petition No.291 of 2017. A decree for divorce was

sought on the ground of cruelty.

3.

It appears that the wife, who is a resident of Etawah, has

secured a transfer of proceedings from the Principal Judge, Family

Court, Agra to the Family Court at Etawah. The petition for divorce

as aforesaid is pending before the Additional Principal Judge,

Family Court, Etawah. This fact is not stated on record, but that is

the only logical conclusion to be drawn considering that the

proceedings commenced before the Family Court, Agra and are

now pending at Etawah, where the revisionist-wife resides.

4.

Pending the divorce petition, the respondent moved to

amend it on the basis of certain supervening events that he sought

to plead in order to establish his case of actionable cruelty. The

aforesaid amendment application was made on 06.04.2022, which

was assigned paper No. 57-Ka on the file of the Trial Court, that is

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to say, the Court of the Additional Principal Judge, Family Court,

Etawah. An objection to the amendment application was filed on

behalf of the revisionist which was marked as paper No.65-Ga.

5.

The thrust of the revisionist's objection before the Trial Court

was that the amendment application being one made seeking to

plead facts based on events that had occurred five years ago, the

proposed amendment is highly belated which ought to be refused

on that ground. Those events, even if true, would give rise to a

cause of action to institute and pursue a criminal prosecution.

Otherwise too, the facts sought to be pleaded were incorrect. The

Trial Court by the order impugned has granted the amendment

subject to payment of Rs.3000/- in costs by the respondent to the

revisionist. The Trial Court has reasoned that cruelty is already a

cause of action which the respondent has pleaded to found his

claim for a decree of divorce, besides others. Since cruelty is

already a ground pleaded in the petition, the facts sought to be

brought in through amendment do not change the nature of the

respondent's case. It was also remarked that issues have not been

framed as yet, and, therefore, permitting the amendment would not

prejudice the revisionist's case. It was also remarked that since the

amendment has been sought after a long delay, it would be

appropriate to compensate the other side by awarding costs.

6.

Heard Mr. Gaurav Tripathi, learned Counsel for the revisionist

in support of the motion to admit this Revision to hearing and Mr.

Puneet Bhadauriya, Advocate who has opposed the motion on the

question of maintainability.

7.

Mr. Puneet Bhadauriya, learned Counsel for the respondent

has raised an objection about the maintainability of this civil

revision under Section 115 of the Code of Civil Procedure, 1908

(for short, 'the Code') urging that in the case of proceedings before

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the Family Court, governed by the Family Courts Act, 1984 (for

short, 'the Act of 1984'), no revision lies from any of its orders

under Section 115 of the Code, which may otherwise be

maintainable on the ground that the order is a ‘case decided’ within

the meaning