Kartick Das vs Parmita Kumar

Subrata Talukdar, J

This application under Article 227 of the Constitution of India impugns the Order No.27 dated the 5th of September, 2018 passed in Matrimonial Suit No.72 of 2017 (for short referred to as Mat. Suit.).

By the said impugned order dated the 5th of September, 2018 the application of the sole opposite party (OP)/the defendant/the wife under Section 151 Code of Civil Procedure (CPC) was allowed by the learned Judge, Family Court thereby permitting the petitioner/the opposite party/the wife to amend her written statement.

Mr.Jayapal, learned counsel, appearing for the petitioner/the plaintiff/the husband submits that the amendment of the written statement could not have been allowed since admittedly, as recorded by the learned Family Court Judge, the trial has commenced and evidence of the present petitioner/the husband has been partly recorded.

Mr.Jayapal submits that the Proviso to Order VI Rule 17 CPC does not permit an amendment normally after the trial has commenced, unless the Court concludes that in spite of due diligence the party seeking the amendment could not have raised the matter before the commencement of the trial.

Mr.Jayapal further submits that in the facts of the present case it cannot be accepted that the opposite party/the wife could not exercise due diligence with regard to her stand in the written statement omitting her requirement for restitution of conjugal rights.

The further stand is taken by learned counsel for the petitioner that the learned Family Court has treated the proposed amendment to the written statement of the defendant/the opposite party/the wife to be in the nature of a counterclaim. However, the provisions of Order VIII Rule 6A CPC clearly debar the opposite party from filing such counterclaim at the present stage to which the trial in the Mat. Suit has reached.

Ms.Nag, learned counsel appearing for the opposite party, draws the attention of this Court to Section 10 of the Family Courts Act, 1984 (for short the 1984 Act). From Section 10 it is sought to be pointed out that the provisions of CPC are not binding on the learned Family Court.

Having heard the parties and considering the materials placed, this Court finds no reason to take a view different from the stand taken by learned counsel for the petitioner.

This Court finds, on a plain reading of Section 10 of the 1984 Act, that the provisions of CPC and/or any other law for the time being in force shall apply to suits and proceedings before the learned Family Court.

Accordingly, this Court finds enough merit in Mr.Jayapal's submission that at the present stage of the trial, the amendment of the written statement could not have been permitted by the learned Family Court. This Court also finds no reason to take a different view with regard to the stand taken by the petitioner that the learned Family Court has failed to apply its mind to the aspect of due diligence. It also requires more than passing mention that the amendment has been sought by invoking the provisions of Section 151 CPC, notwithstanding the presence of specific provisions in the CPC.

In a suit for divorce when a written statement is filed, it is prudent for the defence to be in possession of due diligence at the time of filing the written statement with regard to a basic requirement, viz. of restitution of conjugal rights. In another view of the matter Section 9 of the Hindu Marriage Act, 1955 can be read as a provision under which relief for restitution of conjugal rights can be sought by any of the spouses and decreed accordingly.

For the foregoing reason, the Order dated the 5th of September, 2018 stands set aside.

C.O. No.018 of 2019 succeeds and stands thus allowed.

The learned Family Court is permitted to now proceed with the trial.