IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10TH DAY OF DECEMBER, 2019 BEFORE THE HON'BLE MR. JUSTICE B. VEERAPPA WRIT PETITION NO.50448 OF 2019 (GM - FC) BETWEEN:
Smt.Kiran Niveditha Estranged W/o Sri.Pradeep Raja.G, D/o Sri.K.B.Thimmaraju, Aged about 26 years, R/at ‘Balaji Nivas’ (Siddi Buddi), 2nd Cross, Soofa Road, Behind Saptagiri College, Saptagiri Extension, Tumakuru – 572 101.
(By Smt.Kiran Niveditha, Party-in-person) AND:
Sri.Pradeep Raja.G S/o Sri.L.Gururaja, Aged about 32 years, R/at ‘Anjani’, No.3, In front of Iyengar Bakery, Near Sandhya Theatre, Old Madivala Road, BTM Layout, Bengaluru – 560 068.
... Petitioner … Respondent (By Sri.Abhirup Bangara for Sri.Rohan Kothari, Advocates) This writ petition is filed under Articles 226 and 227 of the Constitution of India praying to quash the order dated 24.10.2019 passed by the I Additional Principal Judge, Family Court, Tumkur in M.C.No.42/2018 on I.A.No.13 vide Annexure – A and allow the application filed by the petitioner vide I.A.No.13 under Order 6 Rule 17 of the Code of Civil Procedure with costs.
This writ petition coming on for Orders this day, the Court made the following:
ORDER Petitioner-wife filed the present writ petition against the order dated 24.10.2019 passed by I Additional Principal Judge, Family Court, Tumkur in M.C.No.42/2018 rejecting application-I.A.No.XIII filed under Order 6 Rule 17 of Code of Civil Procedure.
2. It is the case of the petitioner that the petitioner and respondent were married on 13.08.2017 at Utsava Kalyana Mantapa at Tumkur. The petitioner’s marriage with the respondent was an arranged marriage and petitioner’s parents spent amount for performance of marriage. It is further contended that marriage was not consummated as the respondent has not discharged his marital obligations even during the entire stay of two months in the respondent’s house. The petitioner suspected the marital obligations of the respondent and therefore, she was constrained to file M.C.No.42/2018 under Sections 12 and 25 of the Hindu Marriage Act for annulment of marriage raising various contentions. The said petition was opposed by the respondent-husband by filing the detailed objections. The respondent-husband denied the averments and denied the fact that he has undergone surgery of scrotum as alleged. When the matter was posted for cross-examination of PW1, at that stage, the present petitioner-wife filed the application under Order 6 Rule 17 read with Section 151 of the Code of Civil Procedure to amend the prayer to the effect that the petitioner’s consent was obtained by practicing fraud in not disclosing the material fact concerning the respondent about the rectification surgery on 11.10.2005 etc. The said application was opposed by the respondent-husband by filing the objections.
3. The Family Court considering the application and objections, by impugned order dated 24.10.2019 rejected the application-I.A.XIII filed under Order VI Rule 17 of the Code of Civil Procedure mainly on the ground that the amendment sought is not necessary and the prayer sought in the main petition under Section 12 of the Hindu Marriage Act is sufficient to nullify the marriage between the parties. Hence, the present writ petition is filed for the relief sought for.
4. I have heard Smt.Kiran Niveditha, party-in- person and learned counsel Sri.Abhirup Bangara appearing for the respondent.
5. Smt.Kiran Niveditha, party-in-person contended that the impugned order passed by the Family Court rejecting the application filed for amendment of prayer is erroneous and contrary to material on record. She would further contend that when the matter was posted for cross- examination of PW1, she has filed the application under Order VI Rule 17 read with Section 151 of the Code of Civil Procedure for amendment of prayer. She has sought for amendment of Prayer i.e. to insert Prayer (Aa) after Prayer(A) in the main petition mainly on the ground that she has pleaded in her petition that the marriage was not consummated. The fact that the respondent underwent the rectification surgery for his disfunction of reproductive organ coupled with the fact he is not a position to perform his marital obligation was not disclosed by the respondent when the marriage took place between the parties. The respondent obtained the petitioner’s consent by concealing the real fact.
6. She further contended that the learned Judge has rejected the application mainly on the ground that the petition filed under Section 12 of the Hindu Marriage Act is sufficient. The petitioner-party-in-person has contended that that the learned Judge has not considered the fact as to how the proposed amendment sought in the petition with reference to pleadings already pleaded will prejudice the respondent when a petition is filed by the petitioner- wife. It is for her to establish the case based on the oral and documentary evidence and in the absence of any prejudice, the Family Court ought not to have rejected the application. She would further contend that except the Family Court assigning the reason that the proposed amendment sought in the application is not necessary, no further reasons are assigned to reject the application for amendment. The amendment sought will not alter the nature of the petition or cause of action and no prejudice would be caused to the respondent. Therefore, she sought to allow the writ petition.
7. Per contra, Sri.Abhirup Bangara learned counsel for the respondent contended justifying the order passed by the Family Court in rejecting the application for amendment. The application filed is highly belated and it is nothing but to harass the respondent. Therefore, the Family Court is justified in rejecting the application. The application filed in support of her affidavit are all false facts and are without any basis, and therefore, the same cannot be allowed to amend the prayer. He would further contend that the proposed amendment is an after thought after filing the petition for divorce. Therefore, he sought to dismiss the writ petition.
8. Having heard the party-in-person and learned counsel for the respondent. It is undisputed fact that the marriage of the petitioner and respondent was solemnized on 13.08.2017. It is the specific case of the petitioner that the marriage between the petitioner and respondent- husband was not consummated and the respondent- husband has not discharged his marital obligations even during entire stay of two months in the respondent’s house. The petition is filed under Sections 12 and 25 of the Hindu Marriage Act raising various contentions for annulment of marriage between the parties dated 13.08.2017. The same is disputed by respondent-husband by filing the objections. Whether the marriage is consummated or not or whether the allegations made against the petitioner-wife and denied by the respondent is a matter of adjudication by the Family Court and cannot be adjudicated at this stage when the impugned order passed by the Family Court while rejecting the application for amendment. It is not in dispute that when the matter was posted for cross-examination of PW1, at that stage, the present application for amendment of Prayer (Aa) after Prayer (A) was filed based on the very pleadings already pleaded. Mere allowing the amendment sought for will in no way prejudice the case of the respondent-husband. Ultimately, petitioner-wife who approached the Court for annulment of marriage has to establish the same based on oral and documentary evidence to be adduced by both the parties.
9. The main ground taken by the petitioner for amendment is that at the time of marriage the respondent- husband has suppressed the fact that he is not in a position to perform his martial obligations. The said fact is also pleaded in the main petition. Several grounds are urged in addition to the prayer sought that rectification surgery dated 11.10.2005 was suppressed. Mere amendment will no way prejudice the case of the respondent or alter the nature of the case and cause of action. It is for the petitioner to establish the amendment sought is imperative and appropriate to adjudicate. The amendment sought is bonafide and will not cause prejudice to the respondent-husband. If not allowed it will lead to injustice and multiplicity of litigation. The proposed amendment sought is not constitutionally or fundamentally changes the nature and character of the case.
10. The Hon’ble Supreme Court while considering the provisions of Order VI Rule 17 CPC in the case of M/s Chakreshwari Construction Pvt. Ltd., vs. Manohar Lal reported in 2017 (5) SCC 212 held at para 13 and 16 as under:
“13. The principle applicable for deciding the application made for amendment in the pleadings remains no more res integra and is laid down in several cases. In Revajeetu Builders and Developers v. Narayanaswamy & Sons, this Court after examining the entire previous case law on the subject, culled out the following principle in para 63 of the judgment which reads as under:
“63. On critically analysing both the English and Indian cases, some basic principles emerge which ought to be taken into consideration while allowing or rejecting the application for amendment:
(1) Whether the amendment sought is imperative for proper and effective adjudication of the case;
(2) Whether the application for amendment is bona fide or mala fide;
(3) The amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money;
(4) Refusing amendment would in fact lead to injustice or lead to multiple litigation;
(5) Whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case; and (6) As a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application.
These are some of the important factors which may be kept in mind while dealing with application filed under Order 6 Rule 17. These are only illustrative and not exhaustive.
XX 16. It is true that there was some delay on the part of the appellant in filing the applications but, in our opinion, the appellant had explained the delay. One cannot dispute that in appropriate cases, the parties are permitted to amend their pleadings at any stage not only during the pendency of the trial but also at the first and second appellate stage with the leave of the court provided the amendment proposed is bona fide, relevant and necessary for deciding the rights of the parties involved in the lis.”
11. Admittedly, in the present case, Family Court has not recorded any reason for rejecting the application for amendment except that the application filed for amendment is not necessary as the petitioner has already taken a ground in the petition filed under Section 12 of the Hindu Marriage Act against the respondent seeking relief of annulment of the marriage on the ground of impotency. The learned Judge has not recorded any reason and how the proposed amendment sought will prejudice the case of the respondent-husband. The application filed will no way prejudice the case of the respondent. Therefore, the impugned order passed by the Family Court cannot be sustained.
12. For the reasons stated above, writ petition is allowed. The impugned order dated 24.10.2019 passed by I Additional Principal Judge, Family Court, Tumkur on I.A.No.XIII in M.C.No.42/2018 is hereby quashed. I.A.No.XIII filed by the petitioner-wife under Order VI Rule 17 read with Section 151 of the Code of Civil Procedure is allowed.
13. Respondent-husband is permitted to file amended statement of objections, if any, within a period of three weeks from the date of receipt of certified copy of the order. The Family Court is directed to permit the petitioner to amend the prayer and proceed strictly in accordance with law.
Sd/- JUDGE UN