Smt. R.M. Rajeswari vs M. Ramanathan

P. Jyothimani, J.—The respondent/wife in H.M.O.P. No. 79 of 2005 is the revision petitioner herein., The husband, who is the respondent

in this revision petition, has filed a Petition u/s 9 of The Hindu Marriage Act of 1954 for restitution of Conjugal Rights. The wife has filed counter.

When the matter was taken up for trial, the petitioner while giving evidence has stated that she is not willing to live with her husband and they are

living separately from 2000 onwards. It was at that stage, the husband filed a Petition in I.A. No. 158/2006 under Order VI Rule 17 r/w Section

151 C.P.C to amend the main petition in order to include an alternative relief of divorce on the ground of desertion. That application was allowed

by the trial Judge on 21.8.2007. Against the said order, the present revision petition has been filed by the wife.

The contention raised by the learned Counsel for the petitioner that while it is true that the petitioner, as a wife has given evidence in H.M.O.P.

No. 79 of 2005 that she was not willing to live with her husband, but her case was that she was not able to live with her husband due to cruelty

committed by the husband and therefore, it is not as if she has voluntarily left her husband. It is further contended that it was also open to her

husband to file another application for divorce, which is not a bar,

The learned Counsel appearing for the respondent would submit that this application is filed only to avoid multiplicity of proceedings, Moreover,

according to him, the cause of action arose only after the wife gave evidence stating that she was not willing to live. In view of that only an

application was filed by the husband in I.A. No. 158/2006 to amend the main petition in order to include an alternative relief of divorce on the

ground of desertion.

The contention raised by the learned Counsel for the petitioner is that as per Amendment of Order VI Rule 17 that after the trial has

commenced the amendment should not be allowed, is not sustainable. Order VI Rule 17 reads as follows:

Amendment of Order VI Rule 17

Amendment of Pleadings:- The Court may at any stage of the proceedings allow either party to alter or amend his pleadings 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.

Even in the provisio it is stated as follows:

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 the present case, actually it was only after the wife started giving evidence, cause of action for desertion arose. Therefore, it cannot be said

that the proviso is a bar for allowing the application for amendment in the main petition.

In view of the same, I do not find any irregularity or illegality in the order of the trial Judge. Therefore, the revision petition fails and the same is

dismissed. No costs. Consequently, the connected C.M.P is closed.

It is made clear that after the amendment is effected, it is open to the petitioner/wife to file counter denying the allegations made by the

respondent/husband praying for divorce on the ground of desertion.