Case Note & Summary
The dispute arose from matrimonial proceedings between a wife and husband. The husband had filed a divorce petition under Section 13(1)(i-a)(i-b) of the Hindu Marriage Act, 1955 in 2014. During pendency, after filing his evidence affidavit in 2017, the husband sought to amend the plaint to add allegations that the wife was previously married without obtaining a divorce from her first husband and to include a prayer for declaration of the marriage as null and void. The Family Court allowed the amendment, and the wife challenged that order by way of writ petition before the Bombay High Court. The parties married on 19 February 2006, and the husband filed Petition No. A 534 of 2014 for divorce on 08 December 2014. The wife filed her reply on 02 November 2015. The husband filed his affidavit in lieu of evidence on 07 October 2017. On 13 April 2023, nearly six years later, the husband filed an application under Order VI Rule 17 of the Code of Civil Procedure, 1908 seeking amendment. He alleged that the wife had been married before their marriage and had not obtained divorce from her previous husband, and that he came to know of this from Criminal Application No. 302 of 2015 and an FIR dated 17 June 2015. The wife opposed the application on 09 June 2023, contending that the husband was aware of her previous marriage and that trial had commenced. The Family Court allowed the application on 22 November 2023, observing that cross-examination had not started and therefore trial had not commenced, and directed amendment within 14 days. The core legal issue was whether the Family Court erred in allowing the amendment after trial had commenced, given the proviso to Order VI Rule 17 CPC requiring due diligence for post-commencement amendments, and whether trial commences upon filing of affidavit in lieu of evidence. The wife argued that the husband had knowledge of her earlier marriage from his own evidence affidavit paragraph 8 and from relatives; that trial commenced on 07 October 2017; and that the 2023 application was barred by the proviso, relying on Nitaben Dinesh Patel v. Dinesh Dahyabhai Patel, Anil Ramsing Bilawar v. Anita Gopal Kadam, and Mahadeo Maruti Bhanje v. Balaji Shivaji Pathade. The husband argued that the averment of previous marriage was only an allegation, that he acquired knowledge only after domestic violence proceedings and the wife's affidavit, that he filed the amendment immediately upon gaining knowledge, and that no prejudice would result. The High Court reproduced Order VI Rule 17 and emphasized the proviso. It held that trial commences from the date of filing of affidavit in lieu of examination-in-chief, relying on settled law. The Family Court's observation that trial had not commenced because cross-examination had not started was contrary to this principle. The court also referred to Revajeetu Builders and Developers v. Narayanaswamy and Sons, where the Supreme Court laid down factors for considering amendment, and held that the Family Court failed to consider due diligence and the proviso. The High Court found the Family Court's order erroneous and contrary to law. The provided judgment excerpt ends without recording the final operative relief, but the court's reasoning necessitates that the application be decided in light of the proviso.
Headnote
A) Civil Procedure - Amendment of Pleadings - Order VI Rule 17 proviso - Code of Civil Procedure, 1908, Order VI Rule 17 - The Family Court allowed an amendment application filed after the respondent husband's evidence affidavit was filed in 2017, holding that trial had not commenced because cross-examination had not started. The High Court held this was erroneous; trial commences on filing of affidavit in lieu of evidence, and the proviso requiring due diligence applied. Held that the Family Court failed to consider due diligence (Paras 15-17). B) Civil Procedure - Commencement of Trial - Affidavit in lieu of examination-in-chief - Code of Civil Procedure, 1908, Order VI Rule 17 - Trial in a civil suit commences from the date of filing of affidavit in lieu of examination-in-chief of witnesses. The High Court relied on Nitaben Dinesh Patel, Anil Ramsing Bilawar and Mahadeo Maruti Bhanje. Held that the Family Court ignored this settled position (Paras 12-13, 16-17). C) Civil Procedure - Amendment of Pleadings - Factors for Granting Amendment - Code of Civil Procedure, 1908, Order VI Rule 17 - In Revajeetu Builders the Supreme Court enumerated factors such as whether amendment is imperative for proper adjudication and whether prejudice would result. The High Court referred to these factors and indicated they should be considered while dealing with post-commencement amendment. Held that the Family Court erred by not applying the proviso and these factors (Para 18).
Issue of Consideration
Whether the Family Court erred in allowing the amendment of plaint under Order VI Rule 17 CPC after trial had commenced upon filing of affidavit in lieu of evidence, without considering the proviso requiring due diligence.
Final Decision
The High Court held that the Family Court's order was erroneous and contrary to the proviso to Order VI Rule 17 CPC, as trial had commenced on 07 October 2017 upon filing of affidavit in lieu of evidence. The Family Court failed to consider due diligence and its observation that trial had not commenced because cross-examination had not started was contrary to settled law. The provided judgment excerpt ends before recording the final operative order; the final relief is not explicitly stated.
Law Points
- Legal points not extracted
- Trial commences from the date of filing of affidavit in lieu of evidence
- Amendment after trial commenced is governed by proviso to Order VI Rule 17 CPC requiring due diligence
- Family Court must consider due diligence before allowing amendment
- Amendment should not change nature of suit and avoid prejudice
- Family Court's observation that trial has not commenced until cross-examination starts is contrary to settled law
- Factors laid down in Revajeetu Builders for amendment
