Raj Kumar Lyall vs Manisha Lyall

Sharad Kumar Sharma, J

The petitioner is a plaintiff in a proceeding under section 10 of the Indian Divorce Act 1869, which was instituted by the petitioner for seeking dissolution of his marriage which he contends that the same was solemnized with the respondent as back as on 16th October 1996. It is an admitted case of the petitioner that as a consequence of his marriage with the respondent, two children were born in 1998 and 1999 respectively and now they have grown up considerably.

At the time when the proceedings under section 10 of the Indian Divorce Act was instituted by the petitioner herein by filing the same before the Principal Judge, Family Court, Dehradun on 31st July 2007, the prima facie grounds for seeking decree of divorce which have been laid down in the plaint was that though despite she was professing a Christian religion at the time of marriage and having been married as per the Christian rites and rituals, but she thereafter by her conduct and on her own had adopted Islam and she started putting on burka and she used to visit mosques. Apart from it, various other set of allegations were levelled by the petitioner in the application under Section 10 of the Indian Divorce Act for the purposes of seeking dissolution of marriage dated 16th October 1996.

After the institution of the Suit on 31st July 2007, the petitioner has filed an application under Order 6 Rule 17, on 4th October 2010, seeking to incorporate certain amendments by way of clarification in the pleadings which was already raised in the suit and for which the application was preferred by the petitioner on 14th October 2010. Prima facie, the allegations which were being sought to be incorporated by way of an amendment was with regards to the affinity of respondent-wife, with male friends, with regards to her accusation made against the petitioner pertaining to his physical incapacities and an amendment was sought with regards to neglect and desertion and the sadistic attitude of the respondent towards the children and husband and as she has often reflected an indifferent attitude towards the family and she used to, at times act with atrocity against the children by unnecessarily beating them and mentally torturing the plaintiff/petitioner and it was contended by the petitioner in the amendment application that it was all these sadistic attitude of the respondent No. 1 which was sought to be made as part of the pleadings by amending the plaint.

This Amendment Application after being filed before the learned Family Court was opposed by the respondent by filing an objection on 05.04.2008, being paper No. 13 (ga1) on the ground that all the facts, which are narrated in the amendment application, are the facts which were existing at the time of filing of the petition under Section 10 on 31.07.2007 and were in the knowledge of the petitioner at the time when the suit itself was instituted. Her contention in the objection to the amendment application was that in case if at the time when the institution of the suit by the petitioner on 31st July 2007, is taken into consideration, if there were several set of facts which could have even remotedly constituted, as to be a ground for invoking Section 10 for dissolution of marriage, and out of all those sets of allegations which entailed an interpretation to evidence and these facts were available to the plaintiff at the time when the suit was instituted and it was not incorporated in the plaint then the said amendment under Order 6 Rule 17 could not have been filed at a later stage that too when the suit has reached at the matured stage and was on its final determination. Because in view of the proviso Rule 17 of Order 6, it rather contends to deprecate the mode of a frequent amendment being made in the pleading, and if at all, it was required then it ought to have been justified as per the parameters of its consideration as provided under the proviso to Order 6 Rule 17.

It is not in dispute and as also observed in the impugned order that the Suit after exchange of the pleadings and framing of the issues has reached at an advanced stage of evidence after framing issues, the parties have entered into an evidence and the cross examination of the witnesses was being in progress. Hence, in that view of the matter, the learned Family Court, Dehradun, after considering the stage of the Suit itself has held that the amendment application, as preferred on 4th October 2010, being paper No. 28 (ka), cannot be sustained, because all the aspects which was sought to be incorporated which were itself available to the petitioner when the Suit itself was instituted and amendment is a mode adopted as he intends to delay the proceedings, if deliberately when has chosen to step into the participation of the trial, after the exchange of the pleadings, by way of putting in defence, by way of defence or by way of prosecution a certain set of allegations, as certain aspects, which has already been taken as to be the foundation for invoking Section 10 of the Indian Divorce Act, then when the learned Family Court has held that proceedings was at a ripe stage of Suit, the amendment which altogether incorporates a new ground and facts for the purposes of seeking a dissolution of marriage, cannot be permitted to be carried, as it would amount to be an abuse of process, as it would be having an effect of absolutely diluting the proceedings which has already been held by the Family Court based on which parties have already disclosed their evidence and open their respective evidence, and if such type of amendment about pre existing facts which were otherwise available to the plaintiff is permitted to be carried on the pretext that the new counsel, who was engaged by him has advised him to file an amendment application, it would be an unending process and it cannot be ruled out that it can also be used as a weapon by the litigant party to the proceedings to adopted it as a recourse with malafide intention to delay the proceedings and that too when the nature of pleadings which was sought for apart from the fact that what bearing it would have on the proceedings that is altogether a different aspect but the Court has to consider as to whether the diligence was exercised by the plaintiff, seeking an amendment at the time when the suit itself was instituted or within a reasonable time thereafter, which as per the plaintiff's case was an essential ground for the purposes of laying down the foundation for considering the application under Section 10 of the Indian Divorce Act. Order 6 Rule 17 of the Code of Civil Procedure reads as under:-

"17. Amendment of pleadings. - The Court may at any stage of the proceedings allow either party to alter or amend his pleading in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties:

Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial."

In view of the above provision, it deprecates any amendment after commencement of trial, which is the stage at which present amendment has been sought to be carried, that too when all the proposed facts were the facts which were already available when the suit was filed on 31.07.2007, now filing of an amendment on 04.10.2010 has been at a very ripe stage of the proceedings. Also because if plaintiff that amendment sought were the basic foundation for proceedings under Section, it ought to have been earlier taken when the suit itself was instituted.

After having gone through the grounds as taken in the writ petition and the findings which have been recorded by the family court and after having heard the learned counsel at length, this Court is of the view that looking to the nature of amendment, the facts sought to be incorporated and the stage at which it has been sought to be incorporated is it is in fact at a much matured stage of the suit where the evidence of the plaintiff has closed an argument has proceeded with, hence the stage at which the Suit has reached was outside the proviso to Order 6 Rule 17, thus such type of amendment cannot be permitted to be carried.

Consequently, this Court does not find any merit in the writ petition and the same is accordingly dismissed. The interim order, if any, stands vacated.