Ram Nayyar vs Sonia

L. N. Mittal, J.

CM No. 31948-CII of 2010

Allowed as prayed for.

CM No. 31949-CII of 2010

The application is allowed and Annexure P-1 to P-5 are taken on record, subject to all just exceptions.

Main Case.

Raman Nayyar, who is husband of Respondent-Sonia, has filed the instant revision petition under Article 227 of the Constitution of India to assail order dated 17.11.2010 passed by learned Additional District Judge, Jalandhar thereby dismissing Petitioner''s application for amendment of the divorce petition filed by him u/s 13 of the Hindu marriage Act, 1955 (in short, the Act) against the Respondent.

In the original divorce petition Annexure P-1, the Petitioner has alleged that status of Respondent before her marriage with the Petitioner was divorcee as claimed by her, though no proof of divorce was rendered. The Petitioner sought dissolution of his marriage with Respondent by decree of divorce. The Respondent in her written statement Annexure P-2 admitted her aforesaid status as divorcee before her marriage with the Petitioner.

The Petitioner moved application Annexure P-4 for amendment of the divorce petition alleging that he was under the impression that Respondent had been legally divorced from her first husband as represented by her before her marriage with the Petitioner, but now it has come to light that there was no valid divorce between Respondent and her first husband. In view thereof, the Petitioner wants to add by way of amendment of the divorce petition that the Respondent falsely represented that her earlier marriage stood dissolved by decree of divorce, but in fact there has been no divorce between Respondent and her first husband and, therefore, marriage of Respondent with the Petitioner being in violation of Section 5 of the Act is null and void. The Petitioner in the alternative wants to seek relief u/s 11 of the Act declaring that marriage between the parties is void.

The amendment application was resisted by the Respondent by filing reply Annexure P-5.

Learned Trial Court vide impugned order dismissed the Petitioner''s application for amendment of the divorce petition. Feeling aggrieved, Petitioner has filed the instant revision petition.

I have heard learned Counsel for the Petitioner and perused the case file.

Learned Counsel for the Petitioner vehemently contended that the Petitioner can always take alternative plea and can also seek alternative relief and, therefore, proposed amendment of the divorce petition should have been allowed. The contention cannot be accepted. The Petitioner filed the divorce petition admitting the marriage between the parties to be valid. The very prayer for divorce presupposes valid marriage. Only a valid marriage can be dissolved by decree of divorce. The Petitioner now wants to plead and that to in the alternative that there was no valid marriage between the parties or in other words, marriage between the parties is void ab initio. The Petitioner by amendment cannot be permitted to take inconsistent and mutually destructive pleas.

It may be added that even in the original divorce petition, the Petitioner alleged that Respondent''s status before her marriage with the Petitioner was divorcee as claimed by her, though no proof of divorce was rendered. In view of the said plea, the Petitioner before filing the divorce petition should have satisfied himself about divorce of Respondent from her previous husband and only thereafter he should have filed petition either for divorce u/s 13 of the Act if there was valid divorce of Respondent from her first husband or petition u/s 11 of the Act if there was no valid divorce of Respondent from her previous husband.

It may also be added that marriage between the parties took place on 21.01.1999 whereas divorce petition Annexure P-1 is dated 22.10.2007. In other words, the divorce petition was filed 8 years and 9 months after the marriage between the parties, but for all these long years, the Petitioner never felt the necessity of satisfying himself about validity of divorce of Respondent from her first husband. Even while filing the divorce petition, he did not feel the necessity of satisfying himself about divorce of the Respondent from her first husband. On the other hand, amendment application was moved after evidence of both parties stands concluded. In other words, the amendment application has been moved at the fag end of the trial. It is contended that the amendment application was moved after cross-examination of the Respondent Annexure P-3 was recorded. However, this circumstance does not justify the belated filing of the amendment application. Even otherwise, the Petitioner cannot seek both the reliefs in the alternative because the said reliefs are based on different and inconsistent averments. Divorce can be claimed only when there is legal valid marriage whereas relief u/s 11 of the Act is by its very nature based on the plea that there was no valid marriage between the parties and rather the marriage was void ab initio. Consequently, for this reason as well, the Petitioner cannot be permitted to make the proposed amendment.

For the reasons aforesaid, I find no illegality or jurisdictional error in the impugned order of the trial Court which is fully justified. The revision petition is devoid of any merit and is accordingly dismissed in limine.