Case Note & Summary
The Bombay High Court heard a writ petition under Article 227 of the Constitution of India challenging an order of the Family Court, Mumbai, which had rejected the petitioner's application for amendment of pleadings in a divorce petition. The dispute arose between a husband and wife who were married on 29 September 2006 under the Special Marriage Act, 1954. They jointly purchased a residential flat, Flat No.1301, Lavender Building, Mantri Park, Dindoshi, by a registered sale deed dated 24 April 2009. The wife filed a divorce petition under Section 27(1)(d) of the Special Marriage Act, 1954, being M.J. Petition No.1064 of 2017, seeking dissolution of marriage. During the trial, she filed an application (Exhibit-24) under Order VI Rule 17 of the Code of Civil Procedure, 1908, seeking amendment of the petition to add reliefs of declaration of rights and sale of the immovable property. The Family Court No.2, Mumbai, by order dated 10 February 2025, rejected the amendment application on three grounds: that the questions asked in cross-examination did not provide a cause for amendment; that the essential requirement of the proviso to Order VI Rule 17 CPC requiring due diligence was not fulfilled; and that the proposed reliefs would change the nature of the suit from a divorce petition to one for property declaration and sale, and were not ancillary reliefs. Aggrieved, the wife filed the present writ petition. The petitioner argued that the amendment was necessary to determine the real controversy, that the factual basis already existed in the original petition, that due diligence was not an absolute bar, and that a change in relief claimed need not change the nature of the suit. The respondent contended that the court had no jurisdiction to entertain the amendment application because due diligence was not pleaded, that nothing prevented the petitioner from seeking the reliefs earlier, and that the amendment would substantially alter the nature of the suit. The High Court, after noting the factual background, set out the averments in the original petition which showed that the wife had already alleged the husband's intention to gain full ownership of the jointly purchased flat and had mentioned a suit for sale of the property in the City Civil Court. The available judgment excerpt ended during the court's examination of these averments, before the final analysis and operative order. Therefore, the final decision of the High Court on the writ petition was not included in the provided text.
Headnote
A) Civil Procedure - Amendment of Pleadings - Post-Trial Amendment and Due Diligence - Code of Civil Procedure, 1908, Order VI Rule 17 proviso - The Family Court rejected the amendment application on the ground that the essential requirement of proviso to Rule 17 of Order VI CPC was not fulfilled because the applicant had not shown due diligence after commencement of trial; the High Court examined whether the proviso barred the amendment and whether the Family Court correctly applied the law as laid down in Vidyabai v. Padmalatha and other precedents (Paras 2-3, 7). B) Civil Procedure - Amendment of Pleadings - Change in Nature of Suit - Code of Civil Procedure, 1908, Order VI Rule 17 - The proposed amendment sought to add reliefs of declaration of rights and sale of immovable property to a divorce petition under the Special Marriage Act, which the Family Court held would change the nature of the suit and not be ancillary; the High Court considered whether a change in relief claimed constitutes a change in the nature of the suit, referring to Abdul Rehman v. Mohd. Ruldu and Dinesh Goyal v. Suman Agarwal (Bindal) (Paras 3-6). C) Family Law - Divorce and Ancillary Reliefs - Property Rights in Divorce Proceedings - Special Marriage Act, 1954, Section 27(1)(d) - The petitioner wife sought to amend the divorce petition to include claims regarding jointly purchased flat occupied by respondent husband; the court examined whether such property claims are incidental to matrimonial relief under Section 27 of the Special Marriage Act and whether the Family Court has jurisdiction to grant such ancillary reliefs in a petition for dissolution of marriage (Paras 8-9). D) Constitutional Law - Supervisory Jurisdiction under Article 227 - Scope of Interference with Family Court Orders - Constitution of India, Article 227 - The High Court exercised supervisory jurisdiction to examine whether the Family Court's rejection of the amendment application was perverse or based on erroneous application of law; the parties cited decisions on the limits of amendment under CPC and the need to prevent multiplicity of proceedings (Paras 2, 4-7).
Issue of Consideration
Whether the Family Court erred in rejecting the petitioner's application under Order VI Rule 17 CPC for amendment of the divorce petition to add reliefs of declaration and sale of immovable property; whether the proposed amendment satisfied the proviso to Order VI Rule 17 CPC requiring due diligence after commencement of trial; whether the proposed reliefs were ancillary to the divorce petition or changed the nature of the suit
Law Points
- Amendment of pleadings after commencement of trial requires due diligence per proviso to Order VI Rule 17 CPC
- amendment should be necessary for determining real controversy and not change basic nature of suit
- change in nature of relief claimed not necessarily change in nature of suit
- due diligence is not an inflexible bar but court's discretion remains
- in divorce petition under Special Marriage Act
- property reliefs may not be ancillary if they change nature of suit
- supervisory jurisdiction under Article 227 of Constitution of India
