ORDER

The Civil Revision Petition is directed against the order passed in

I.A.No.1 of 2023 in H.M.O.P.No.63 of 2020, on the file of the Family Court, Madurai, allowing the petition filed under Order VI Rule 17 of the

Civil Procedure Code.

2. The respondent has filed a petition in H.M.O.P.No.425 of 2019, against the revision petitioner claiming restitution of conjugal rights on the file of the Family Court, Trichy and that subsequently the case was transferred to the file of the Family Court, Madurai and the case is pending in H.M.O.P.No.63 of 2020. It is not in dispute that the marriage between the parties was solemnised on 23.05.2012 as per the Hindu rites and customs and due to their wedlock, they were blessed with a male child Sharvan, that the respondent – husband has filed a petition in G.W.O.P.No.1217 of 2022 seeking custody of their minor child Sharvan, that the revision petitioner/wife has filed a complaint under the provisions of the Domestic Violence Act in D.V.No.1 of 2020 and that the same are pending. Pending original petition, the respondent/husband has filed a petition in I.A.No.1 of 2023 under Order VI Rule 17 C.P.C., to amend the main petition for converting the petition for restitution of conjugal rights as the petition for divorce.

3. The main contention of the respondent/husband is that the petitioner has committed several matrimonial cruelties against him, but he has not sought for the relief of divorce, with an intention to safeguard the reputation of either families and for the welfare of their minor child Sharvan, that the petitioner, subsequent to the filing of H.M.O.P., lodged several false complaints of dowry harassment before the police against the respondent, his parents and brother, which resulted in the criminal proceedings, that the petitioner has also initiated proceedings under the Domestic Violence Act, that the respondent has arranged a separate residence for the petitioner at Madurai, in pursuance of the compromise move initiated by the Family Court, Madurai, but even thereafter the petitioner has adamantly refused to come and live with him, that the respondent has all along been patiently waiting under the bonafide belief that the petitioner would change her attitude and resume back to the matrimonial home, but the respondent has lost his hope due to the conduct of the petitioner and that because of the subsequent events and altered circumstances, the original relief sought for by him has become inappropriate or even if granted, the same will not be useful and that therefore, he was constrained to file the above application to amend the petition to claim divorce.

4. The revision petitioner/wife has filed a counter statement raising objections stating that the relief of conjugal rights and the relief of divorce are diametrically opposite to each other, that the proposed amendments are all against the provisions of the Hindu Marriage Act, that the entire character of the main petition, entire cause of action and the relief claimed in the petition shall change if the proposed amendment is allowed, that no amendment of pleadings can be allowed which has the effect of introduction of mutually destructive pleas and that therefore, the petition is liable to be dismissed.

5. The learned Judge of the Family Court, after enquiry, has passed the impugned order dated 17.08.2023 permitting the proposed amendment. Aggrieved by the impugned order, the wife has preferred the present Civil Revision Petition.

6. Before entering into further discussion, it is necessary to refer the decisions relied on by the learned Counsel for the revision petitioner.

1. (2012)2 SCC 300 (J.Samuel and others Vs. Gattu Mahesh and

Others):

“In suit for specific performance of contract of sale of property, specific averment that plaintiff was and is always ready and willing to perform his part of contract, which is essential under S.16(c) of Specific Relief Act and Appendix A Form 47 for maintaining suit, not contained in plaint – Appli