Sawita Devi vs Pran Nath

J.N. Bhat, J.—This is an appeal against die order of the learned District Judge, Srinagar dated 2-12-65 whereby he has allowed amendment

of plaint as prayed for by the Respondent. Moreover, under the provisions of Section 14 of the Hindu Marriage Act (hereinafter to be referred to

as the Act) he has condoned the delay of a few months from the statutory period of three years as contained in Section 14(1) of the Act for

reasons recorded by him.

The facts that have given rise to this appeal are that the Respondent filed a petition apparently u/s 13 of the Act on 21-11-64 against the

Appellant. The Petitioner prayed for a decree of divorce or such other alternative relief as the facts of the case would warrant. The marriage of the

parties admittedly has taken place on 11th June 1962. On the date of the presentation 6f the application two years, five months, and ten days bad

elapsed after the performance of the marriage as held by the learned District Judge. When this petition was presented an objection was taken on

18-3-65 by the wife that the application being three years before the solemnization of the marriage and no' grounds of exceptional hardship to the

Petitioner or of exceptional depravity on the part of the Respondent having been pleaded, the petition could not be entertained and should be

dismissed. On this the Petitioner again put in an application on 26-3-65 stating therein that he would be put to hardship; if the application were

dismissed and there was only a short time to complete the three years as laid down by law. The matter remained pending. Then by means of an

application dated 18th October 1965 the Respondent husband put in a detailed amended plaint wherein he made a long list of allegations against

the Appellant. In paragraph U of that amended petition he requested the Court for condonation of the period by which his original application for d

voice was premature.' Objections were filed wife these abjection are without any under but they seem to have been presented

It has been pointed out during arguments by the learned Counsel for the Respondent that the Appellant has not -specifically refuted the request

for condonation, of the time as contained in Para 11 of amendment petition or the petition seeking, amendment Thereaftejf1 the Court heard

argument? and by order under appeal. it held that as all efforts at a compromise had failed Court was of the opinion that the petition not be throw

out and secondly that more than three years had elapsed when, this petition for amendment was presented. If the original petition be ordered to be

thrown put, hardly will the ink have dried, up on the order, sheet when another application will he made Therefore exercise in his discretion the Act

the trial court candied the delay and allowed the a indent excepting the allegations mentioned Para 3(c)(d) and (f) of the application of 28-10-65, It

is against this order that the present appeal has been preferred As the order under appeal is a very, substantial one and besides very important

matter in issue between the partisans been decided by this order we think the appeal .is competent u/s 28 of the Act.

Mr. Sunder Lal counsel for the Appellant has argued that if an application is made before three years have elapsed since the date of the

marriage and seeks divorce u/s 13 of the Act, the Court is not competent to entertain the petition, unless of course con donation is sought on'the1

ground that the ease is one of exceptional hardship to the Petitioner or of exceptional depravity on the part of the Respondent. Neither fact was

mentioned in the petition nor .in the subsequent application 26-3-65. Therefore the Court had no power condone the delay and continue the

application The application should have been-rejected leaving the parties to take, such recourse as would be available to them under law.

On the other hand Mr. Tiku for the Respondent has argued that the allegation in his original petition which purports to be u/s 13 of the Act is an

allegation which can justify a decree fore judicial separation u/s 10 of the Act and for divorce u/s 13. It is a composite application -. and the relief

claimed is also one for divorce or any other life that the Court may think fit These fore recording, to Mr. Tiku even if the stat period of three years

had not elapsed is necessary in the case of an applicator divorce, the application could be treat Edna application. for judicial separation, and where

applied for, amendment of he origination praying for a decree of divorce a. detailed set of facts on 28-10-85 more that three years had elapsed the

Court was there lore competent to allow the responders amend the petition Moreover Mr. Tiku THAT in the objections presented on Appellant

had not taken any specific k the allegation contained in Para 11 and other it may be committed in such aggravating cirsiunilarparas as contained in

the application of the Respondent dated 28-10-65. We shall consider both these arguments.

The trial Court has however in its order condoned the delay, although this part of the case did not find any place in the argument of the learned

Counsel for the parties, we think it necessary that something should be said about it. In our opinion Section 14 has been enacted simply to

discourage young spouses on taking recourse to legal proceedings in a if villous hasty, rash or irresponsible manner so that the ship of marriage

may not be wrecked in the first storm of married life. This is the principle behind this proviso. However, in this Act the terms 'exceptional hardship'

or exceptional depravity' have not been denned, hut these terms have been used in Section 2(1) of the U.K. Matrimonial Causes Act 1950. Under

that Act these expressions have been the subject matter of interpretation. In Bowman v. Bowman 1949 2 All ER 127 Denning LJ observed:

This case raises the question in what circumstances leave ought to be given to a spouse to present a petition for divorce within three years of

marriage. By the Matrimonial Causes Act 1927, Section 1(1) that leave can only be gaited on the ground of exceptional hardship suffered by the

would-be Petitioner or of exceptional depravity on the part of the proposed Respondent. The answer depends on the use of the word

exceptional."" The case put forward by the applicant must disclose 'exceptional depravity on the part of the other spouse or exceptional' hardship

suffered by the applicant. This involves an inquiry into the degree of depravity alleged or the degree of hardship said to be suffered an inquiry

which, it is pi tin, may prove to be a difficult task and it-is not surprising that different judges have interpreted the provisions of Section 1(1) in

deterrent ways.

The only cases in which the question arises are of course, those of adultery or of cruelty. If there is nothing more than adultery with one person

within the first three years, of marriage that may be considered ordinary but depravity. There is, I am sorry to say, nothing exceptional about that

situation, and it does not involve exceptional hardship on the innocent spouse, the applicant. The stress that it causes is one which may have to

endure. If however tin: adultery is coupled with other matrimonial offences, e. g., if a husband not only commits adultery but also deserts his wife in

favour of another woman, or if he is cruel to her, thus causing her not only distress by his adultery but also injury by his violence then even if his

offence cannot be stigmatized as exceptional depravity on his part nevertheless it does in vice exceptional hardship suffered by the wife even if the

adultery is not coupled with another man so that the husband of he took her back would have to maintain another man’s child or it may be

committed in such aggravating circumstances as to snow- exceptional depravity. The husband who commits adultery within a few weeks of

marriage, and who commits adultery promiscuously with more than one woman or with his wife's sister, or with a servant in the house, may

probably be labeled as exceptionally depraved. Such at least, are instances, when sitting in chambers; I have given leave to a spouse to present a

petition for divorce within three years of marriage.

In Fisher v. Fisher, (1948) 1948 P. 263, both parties were under 20 years of age at the time or their marriage and served in HM forces. The

wife was not willing to live any child and did not allow sexual intercourse without a contraceptive even during the honeymoon. When once the

husband came home on leave, she refused sexual intercourse as he had no contraceptive. Three or four months after the marriage, the wife wrote

to the husband that she did not like to live with him' and suggested a divorce. Sometimes later she admitted to have committed adultery with an

American Sailor on various occasions. The husband applied for leave to present a divorce petition though the period of three years from the date

of marriage had not elapsed It was held that the facts of the case not disclose 'exceptional hardship or 'depravity' so that the permission was

withheld.

There are a few other authorities under this Act which need not be cited. '

In our opinion the facts of this case do not warrant the conclusion of the learned District Judge that it was a fit case in which delay should have

been condoned on the mere ground that the parties were young and the Appellant had refused to live with her husband. ""Therefore the case was

not one of exceptional' hardship to the Petitioner.

Anyhow"" this is, only one aspect, present petition whether we call it a Petitioner of the matter; when we Vanalyze the arguments of Mr. S. Lal

his only contention is that the present petition whether we call it a Petitioner for divorce or judicial separation, should be rejected and in the words

of this section should not be entertained by the Courts below. But what could be the actual result? it has been rightly pointed out the learned

District Judge that if the present application is dismissed or not entertained the ink will be hardly dry on the order before another application' on the

same ground shall be presented. That is a very serious and ' important consideration which should weigh with us in disposing of this appeal.

Before we take up this aspect of the case, let us consider the alternate argument of Mr. Tiku i.e., the original petition may be treated as one for

divorce or in the alternative for judicial separation. He has invited our there has not been desertion for the statutory period of two years is-not a

matter which would justify throwing out of the application in limine That may be a matter of merits of the case and may result in the dismissal of the

application. Put there is no bar to such an application being entertained as in the case of an application, for divorce In that case Section 14

definitely states Hat an application brought before the expiry of three years of the marriage should not be entertained by the Court unless the

petition socks condonation of the period on the grounds mentioned therein. Therefore in our opinion keeping in view that pleadings are not very

carefully and artistically drafted we cannot rule out the suggestion of Mr. Tiku that his .original application was a composite application, Under

Sections 10 and 13 of the Act, though it men Honed only Section 13 in the title of the Petitioner

We have to consider another important aspect of the matter on 28-10-65 than three years had elapsed after the solemnization of the marriage.

The original application was sought to be amended by the Respondent and he amplified the grounds taken in the original application of 20th

November 1964. The learned District Judge has disallowed the amendments so far as Paras 8(c), (d) and (f) of the amended petition are

concerned. We shah comment on this aspect of his finding towards the conclusion of this order.

One more important point of law arises this case that has not been argued at the bar. Assuming that the original application was for divorce and

judicial separation for divorce simpliciter, it has to be considered whether the application should be rejected on the ground that the application was

presented before three years of the marriage and whether the amendment should be allowed for which the application was already made after

three years of the marriage. There are authorities both for and against the proposition that the Court can taken into notice certain subsequent mints

and adjust the pleadings and relief adoringly. Ordinarily the rule of law is that all cases shall be decided on matters which existed on the date of the

institution of the suit, Subsequent events should not be taken into consideration which would change the nature of the whole case. There are a

number of authorities which lay down that the Court nay allow a suit or an application which did not lie when it was actually brought but by reason

of subsequent events it can proceed if substantial justice would be done to the parties, by allowing necessary amendments., Amongst the

authorities which lay down that subsequent events should not be taken into consideration and the case should be decided on the facts as existed on

the date of the institution of the proceedings the following may be mentioned:

(1893) ILR 15 All 399. In that case one K.C. Zamindar sued in a Court of revenue to recover an occupancy holding from one B.S. his

occupancy tenant and that tenant's transferee, GS to whom, by a transfer which was inoperative u/s 9 of Act No. XII of 1881. B.S. purported to

make over the occupancy holding the occupancy suit was fled, but before he had received1 of it; and the transferee being in SoleMpotfsion of the

occupancy holding defended suit., It was held that the Seminar's suit' m lustful inasmuch as at the time when it was he was not entitled to immediate

possession the occupancy holding.

In (Mylavarapu) Rangayya Naidu Vs. Basana Simon and Others, it was held that if a suit is premature at the date of decision a though. not at

the date of decision, v. decree .cannot be granted and the only court in such cases is to dismiss the suit with Heir"" to bring a fresh suit -upon a

proper cause-auction.

In AIR 1951 MP 68 it has been laid dewing that as suit or a application made be Tried and decided on the cause of action it existedfatnthe

date"" of its commencement of exception that motive the Court may suit blew cases take notice of the facts coming into existence after the filling of

the suit application and given relief on the basis there cannot be applied in a case where to dosed vantage to one party would be to given manifest

advantage or dosed vantage to one party in this case (Mylavarapu) Rangayya Naidu Vs. Basana Simon and Others, was held to be laying Dow

bad law.

In Amritlal N. Shah Vs. Alla Annapurnamma, ""D of that Court discussed exhaustively the case law on the point and held .

It is now well settled that in proper case the Court is entitled to take note of subsequent events and grant relief to the parties accordingly, if by so

doing it can shorten litigation and best attain the ends of justice. The power may be exercised even by the Court of appeal at an appeal is only in

the nature of re-hearing.

There is a series of authorities which have consistently held that to mitigate hard and shorten litigation it is open to Courts' take note of

subsequent events in granting re life provided the substantive rights of parties are unaffected. On this reasoning suits which were premature at the

time of their institution were allowed to be continued and even decree when during the pendency of the suit the right to relief had accrued to the

Plaintiff. The authorities may not be discussed in detail but only a few may be cited to illustrate the point These authorities are: AIR 1918 Mad 143

(1) Doraisami Pillai Vs. Chinnia Goundan and Others, ; AIR 1953 Bom""342; Ramdayal Vs. Maji Devdiji, ; AIR 1917 Cal 822; Sankara Pillai and

Others Vs. Mathunni Ittiera and Another, and AIR 1954 Madh-B 193 (FB).

These authorities also take into consideration subsequent changes in law and make it obligatory upon the. Courts to so adapt adjust their reliefs

as. would be in accords the changes in law after the institution of the suit.

Applying, the principles of reties of which there are many more that on the date the application for of marriage or other relief was presented

Petitioner Respondent was not entndecree. for divorce but his applicant judicial separation could proceed lapse of the requisite period of three

years the amendment has been sought to specification bring in the allegations which would entitle the Respondent to a decree for divorce. The sub-

stance of the allegations in both the petitions is the same only that the amended petition gives out the facts in greater detail. If we take a

hypertechnial view of the whole matter and reject the original application, no practical benefit or gain to either side will accrue; only that the present

application will be rejected and a new one presented before the same Court with file same allegations.

in our opinion instead of serving anybody's purpose it will unnecessarily prolong the litigation. It is in the interest of the parties and doing them

substantial justice to allow the amendment as prayed for by the Respondent. We do not agree with the learned District judge that Clauses 3(c)(d)

and (f) should not be allowed to be put in the amended petition. The case is yet at the earliest stage. The Respondent may even otherwise pray for

permission to amend his petition by adding some mote grounds. This he could do subject to payment of costs. We do not think that in the

circumstances of this case we should refuse the Respondent the amendment. But one thing is very clear that the Petitioner Respondent has been

very negligent in drafting his petition. This negligence on his part raised so much of unnecessary controversy and resulted in waste of time of the

Appellant. If the Respondent has wasted his time, for that he has nobody to blame We think the ends of justice will be met by awarding substantial

costs in favour of the Appellant.

We would, therefore, dismiss this appeal on condition that the Respondent will be permitted to amend the original application as prayed for

him in his application of 28-10-65 on payment of Rs. 200/- as costs to the Appellant, otherwise his original application shall stand dismissed with

costs assessed at Rs. 100. The costs shall be paid by the Respondent within a month from to day If the costs of Rs. 200/- are not paid the original

unlamented application of the Respondent cannot proceed on the ground of judicial separation also be cause admittedly on the date application

was presented desertion did not extend for the statutory period of two years (vide Para 4 of the original application.

J.N. Wazir, J.

I agree.