IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23RD DAY OF FEBRUARY, 2017 BEFORE THE HON’BLE MR. JUSTICE A S BOPANNA WRIT PETITION No.37267/2016 (GM-FC) BETWEEN:
SRI B. S. VIKRAM S/O B.N.SRINIVAS AGED ABOUT 39 YEARS, RESIDING AT NO.483/25 1ST FLOOR, KAVERI NAGAR, 3RD CROSS, ABOVE MANJUNATH BAR, K. NARAYANAPURA MAIN ROAD, BEHIND RASHTROTHANA VIDYA KENDRA, SRIVARAM KARANTH NAGAR POST, BENGALURU-560077 (BY SRI. SHIVPRAKASH G K, ADV.) AND:
SMT. RAJASHREE VIKRAM BELUR W/O B.S.VIKRAM, AGED ABOUT 39 YEARS, RESIDING AT ROOM NO.7 SHANTHI VIHAR, MAHARASHTRA NAGAR, BANDUP (W) MUMBAI-400078 (BY SRI. M B INAMDAR & SRI. ROBERT D’ SOUZA, ADVs.) ... PETITIONER ... RESPONDENT THIS PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, WITH A PRAYER TO CALL FOR THE RECORDS IN M.C.NO.1484/2013 ON THE FILE OF THE IV ADDITIONAL FAMILY COURT JUDGE AT BENGALURU AND ETC.
THIS PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R The petitioner is before this Court assailing the order dated 30.03.2016 passed on IA-XVI in M.C.No.1484/2013 impugned at Annexure-F to the petition.
2. The petitioner herein is the husband of the respondent. The petitioner has filed the petition in M.C.No.1484/2013 under Section 9 of the Hindu Marriage Act, 1955 (‘the Act’ for short). In the objection statement filed by the respondent-wife, she has also raised a counter claim. In the counter claim, the provision contained in Section 13 has been invoked seeking dissolution of marriage. When the petition was pending at that stage, the respondent wife has filed an application in IA-XVI under Order VI Rule 17 of CPC seeking amendment to the counter claim to invoke the provision contained in Section 12(1)(a) and (c) of the Act. The application was opposed by the petitioner-husband. The Court below by the order dated 30.03.2016 has allowed the application. It is against the said order, the petitioner is before this Court.
3. Having heard the learned counsel for the parties, I have perused the order impugned. A perusal of the order would indicate that the Court below while taking into consideration the provision contained in Section 12 and the objection raised that the amendment would be barred by time, has taken into consideration the date of the marriage as 31.05.2012 and in that light has indicated that the counter claim was raised on 30.03.2013 and therefore has arrived at the conclusion that the provision which is invoked through the amendment is to indicate that it is within one year of the marriage. The said observation of the Court below is not justified, since from the records it is seen that the counter claim was raised on 03.07.2013.
4. Even if that be the position, the question is as to whether the amendment should have been permitted and if permitted as to how the question relating to the limitation is to be regulated. In that regard, even if the provision contained in Section 12(1)(a) and (c) is perused, the cause of action for filing a petition under Section 12 of the Act is to be filed within the period of one year from the date the fraud has been discovered. In the instant case, the respondent-wife in that regard contends that the counter claim has been raised as per the provision contained therein after the fraud was discovered. Learned counsel for the petitioner would however contend that the respondent-wife in fact had filed a petition in the Court at Mumbai and the averments made therein would indicate that the respondent-wife was aware of all these aspects of the matter and at this juncture, it cannot be contended that the fraud was discovered only at this point in time. If the said contentions are kept in view, these are matters which would have to be considered by the Court below based on the evidence that would be tendered to come to the conclusion.
5. Therefore, as to whether the relief as sought under the provision by invoking Section 12 of the Act is to be granted or not including on the question of limitation is to be considered by the Court below based on the evidence that would be available. Though the application seeking amendment being allowed is not interfered, it is made clear that the amendment as permitted is subject to the limitation for granting the relief and the question in that regard is left open to be considered by the Court below ultimately to arrive at a conclusion as to whether the relief claimed under the said provision be granted or not.
With the said clarification, the petition stands disposed of.
Sd/- JUDGE akc/bms