ORAL ORDER

These petitions are filed by the wife, who is defending the divorce petition in MC.No.979/2015 filed by the husband under Section 13(1)(ia) of the Hindu Marriage Act, 1955 (for short, 'the Act') and she has also initiated a petition in MC.No.5328/2015 for restitution of conjugal rights under Section 9 of the Act against the husband. 2. When such being the case, the wife filed two similar applications in the aforementioned two proceedings, under Order VI Rule 17 read with Section 151 of CPC seeking amendment of pleadings to incorporate a paragraph to show that she was having a cordial and happy relationship with her husband and she was having regular physical relationship with the husband and that as on the date of filing of the divorce petition by the husband i.e. on 28.02.2015, they were living under the same roof and were constantly, having physical relationship till her father received the notice from the Family Court in the second address mentioned in the divorce petition. It is also stated in the amendment application that the husband had neither informed her about filing of the divorce petition nor refrained from physical relationship either before filing of the petition or till discovery of filing of the petition by the wife. It is also stated that the wife had constant physical relationship with the husband and he has not condoned the act of alleged cruelty under Section 23 of the Act and that the husband has played fraud on the wife by initiating the petition despite living under the same roof by mentioning the same address.

3. Upon consideration of the application on merits, learned Judge of the Family Court dismissed the application by rejecting the incorporation of the amendment sought for by the wife.

4. It is the vehement contention of learned counsel for wife that the amendment so sought for by the wife is very crucial and important for adjudication of the matter before the Family Court. However, learned Judge of the Family Court has not considered the application appropriately and not taken the relevancy of the contents of the amendment. He contends that the law laid down by the Hon’ble Apex Court with regard to amendment being allowed at any stage of the proceedings so far as it does not cause any hardship or inconvenience or divergent view of 180 degree in the amendment, which would hamper the case of the husband. On facts and circumstances of the case, it is admitted by the husband that as on the date of initiation of divorce petition, the wife was residing and living under the same roof, which is apparently seen in the cause-title of the divorce petition and neither the notice was served on the wife by hand nor informed, it was only received by the father in the alternative address mentioned in the petition.

4.1 It is further contended by learned counsel for wife that once there is a cohabitation between the wife and the husband, the question of husband filing a divorce petition would be barred. Therefore, it is his contention that the husband cannot take advantage of his own wrong as contemplated under Section 23(1)(a) of the Act. However, he contends that this aspect has not been pleaded, more specifically with regard to cohabitation, conjugal and physical relationship between the wife and the husband and that the husband has played fraud on her. He also contends that all these aspects have been narrated by the wife in her evidence and so also in the cross-examination of the husband to large extent. He contends that the evidence in both the matrimonial proceedings has been concluded and the matter is now set down for judgment. Nevertheless, the application for amendment came to be filed when the matter was set down for arguments. Thereafter, the application came to be dismissed and the matter is presently set down for judgment.

4.2 It is the vehement contention of learned counsel for wife that he is not inclined to lead any further evidence. The amendment sought for is necessary for the reason t