Gurveen Kaur vs Ranjit Singh Sandhu and Another

A.L. Bahri, J.—This revision is by Mrs. Gurveen Kaur, the wife, against order of the District Judge, Chandigarh, dated March 6, 1990, allowing application filed by the husband Ranjit Singh Sandhu under Order VI Rule 17 of the Civil Procedure Code, for amending the petition filed u/s 13 of the Hindu Marriage Act.

It is not necessary to given in detail the allegations of the husband made in the original petition filed u/s 13 of the Hindu Marriage Act. Suffice, it to say that the divorce was claimed by him on the ground of cruelty. Subsequently, the husband moved an application for amendment of the petition which was allowed and he was allowed to take up the second ground for divorce i.e. the wife had voluntary sexual intercourse with someone else. It was sometime thereafter that the present application for amendment of the petition was filed in order to incorporate four matters in para 54-A, B, C and D. This application was filed because the facts sought to be pleaded came to the notice of the husband afterwards. This application was contested and ultimately allowed by the District Judge.

In para 54-A the husband wanted to plead that in an article published in the Eve''s Weekly of September 16-22, 1989, the wife had made certain allegations against him and his father which also amounted to cruelty. In para 54-B the husband wanted to plead that on notice issued by the Court of Senior Sub Judge, Chandigarh, the same was circulated by the wife among the members of the Bar Association of the High Court where the husband and his father are practising and are members. This was done to humiliate them and defame them and this also amounted to cruelty. In para 54-C it was sought to be pleaded that the wife and one Nand Lal on her behalf made false complaint to the Income Tax Authorities and an enquiry was initiated by the Income Tax Authorities. The irresponsible and false allegations made in the complaint amounted to cruelty. In para 54-D the husband wanted to incorporate certain pleas which were taken by the wife in her written statement which were alleged to be false and amounted to cruelty.

Learned counsel for the petitioner has argued that since it was required of the wife in answer to the petition filed u/s 13 of the Act to plead such of the facts on proof of which, relief could be denied to the husband in view of Section 23 of the Hindu Marriage Act, the wife could only be asked to prove those facts if the husband had initially proved the grounds given in the petition filed u/s 13 of the Act. According to the counsel, the burden could not be put on the wife to prove her allegations made in the written statement otherwise the Court is to grant the petition u/s 13 of the Act. In other words it has been argued that amendment of the petition can only be allowed with respect to the grounds which were then existing. The subsequent events cannot be considered as amendment of the petition or plaint would be -with effect from the date of institution of the original plaint or petition. In support of this contention reliance has been placed on the decision of the Punjab High Court in Kesho Ram Passey Vs. Dr. P.C. Tandon and Another, . It was held that the plaintiff could not be allowed to amend the plaint by adding new causes of action which had arisen after the filing of the suit. If the plaintiff had a grievance against the defendant for giving him other causes he must pursue his remedy by filing another suit. The ratio of the aforesaid decision cannot be applied to the cases under the Hindu Marriage Act. Hindu Marriage Act is a Code by itself and the scheme of the Act provides different grounds on proof of which not necessarily that the relief may be granted but a duty is cast upon the Court further tito take into consideration the provisions of Section 23 of the Act and to deny the relief if the petitioner wanted to take advantage of his own wrong or that the petitioner was not in any manner accessory to or connived at or condoned the act complained of and, even in the case of ground of cruelty, the petitioner had not condoned the same or that the petitioner was not colluded with the respondent or there was no unnecessary on improper delay or there was no other legal ground why relief should not be granted. The respondent in a petition for the grant of relief under the Hindu Marriage Act was thus expected to plead the ground on which relief could be denied as contemplated by Section 23 of the Act. At the same time the fact cannot be lost sight of that if such a person makes reckless allegations against the other spouse in the written statement and if they are not proved the same would amount to mental or legal cruelty, and the other spouse would be entitled to the relief asked for on that very ground. This matter was under consideration of a Division Bench of this Court in Paras Ram v. Kamlesh AIR 1982 P &H 60. A petition u/s 13 of the Hindu Marriage Act was filed on the ground of cruelty. In defence in the written statement certain allegations were made, which, if not proved, would amount to cruelty. It was held in paras 12 and 13 of the judgment as under :--

"The falsity of the aforesaid stand is also manifest when examined from another angle. The law seems to be settled that an earlier or collateral allegation of adultery, if false, would immediately give a cause of action to the offended spouse. If that be so, a second petition would obviously lie by a spouse against whom false allegation of adultery has been raised in an earlier petition. Indeed this position was not very fairly controverted by the learned counsel for the respondent. If in a second petition the allegation of adultery made in the earlier could be made as a cause of action, one fails to see why such an accusation in the written statement in the same proceeding should be on a different footing. Subscribing to the view canvassed on behalf of the respondent can only tend to lead to a multiplicity of proceedings which it is always the intent of the law to avoid. I am, therefore, unable to subscribe to any abstract theory of a complete privilege to the allegation of adultery made in a written statement.

Once the aforesaid conclusion has been arrived at that a mere allegation of adultery without more does not amount to legal cruelty. It is manifest that in order to succeed on this ground the petitioner must establish the falsity of such an allegation. The burden of proof, however, being a negative burden would in the initial stage be a light one. It would, therefore, become necessary that the petitioner in such a situation would have to amend the petition and plead the false allegation of adultery amounting to cruelty as a specific ground for matrimonial relief. It is only when this has been made a ground of attack that the petitioner can possibly take advantage of such an allegation, if proved false. Unless the truth or falsity of such allegation made in the written statement is put to trial in the manner aforesaid and it is established one way or the other no legal consequences can flow therefrom for the purpose of Section 13(1)(ia) of the Act. It is, therefore, necessary in such a situation that not only the requisite amendment should be made but a specific and clear issue with regard thereto be framed so that the parties should go to trial thereon with their eyes open. We cannot but view with disfavour the framing of rather omnibus issue in matrimonial matters as appears to be situation in the solitary issue framed in his case.

It is elementary that in order to succeed in a petition the burden of establishing cruelty u/s 13(1)(ia) is on the spouse who alleges the same. However, in a case of the present nature where such an allegation has been made in defence in the written statement it would be a negative burden which can easily be discharged by merely averring that the allegation of adultery is false. It would then be for the spouse alleging the adultery to substantiate the same. We must now pointedly notice that Mr. Ashok Aggarwal the learned counsel for the appellant has forthrightly prayed that on the aforesaid view of the law which we have taken he should now be allowed to amend the petition and expressly make the false allegation of adultery made in the written statement as a ground for claiming divorce."

As laid down by the Division Bench, the appropriate course was to amend the petition when new facts came to the notice of the husband either after filing of the written statement or otherwise. Learned counsel for the respondent referred to other decisions also in support of his contention that the allegations which are being introduced by amendment which are attributed to the wife would amount to legal cruelty. It is not necessary at this stage for this Court to comment on that subject. It will be appropriate for the trial Court after evidence is produced to adjudicate upon that.

With respect to some of the allegations which are to be introduced in the main petition, it has been argued by counsel for the petitioner that they were subsequent events for which a fresh petition, if so advised, should be filed by the husband. This contention cannot be accepted. The main petition is at the initial stage. Only written statement has so far been filed. Even if the husband chooses to file a fresh petition, the same would be tried with the present petition as the evidence on most of the points would be common. No illegality or irregularity in the impugned order has been pointed out to interfere with the order of the District Judge. The order has been passed within jurisdiction. The revision petition is dismissed. No costs.