Case Note & Summary
The petitioner, Mr. Antonio Ferdino Varela, filed a writ petition challenging the order dated 06.01.2014 passed by the learned District Judge-2, Panaji, which partly allowed and partly refused his application for amendment of his divorce petition. The petitioner sought to add an additional ground for divorce under Article 4(8) of the Law of Divorce (Portuguese Civil Code, 1867), which requires continuous separation for 10 years. The trial court refused this ground as premature because the amendment application was filed on 17.06.2013, and the 10-year period had not yet expired. The High Court considered whether the trial court's discretion was arbitrary or unreasonable. The court held that the trial court's decision was based on a valid reason—the prematurity of the ground—and thus was not arbitrary or unreasonable. The High Court dismissed the writ petition, upholding the trial court's order.
Headnote
A) Civil Procedure - Amendment of Pleadings - Discretion of Trial Court - The trial court's refusal to allow amendment incorporating a ground for divorce under Article 4(8) of the Law of Divorce was held not arbitrary or unreasonable as the ground was premature, the required 10-year continuous separation period not having expired at the time of filing the amendment application. The High Court upheld the trial court's discretion, finding no perversity or unreasonableness. (Paras 3-5)
Issue of Consideration
Whether the discretion exercised by the learned District Judge-2 in refusing leave to amend the petition by incorporating additional ground for divorce based on Article 4(8) of the Law of Divorce is arbitrary and unreasonable?
Final Decision
The writ petition is dismissed. The order of the learned District Judge-2, Panaji, dated 06.01.2014 is upheld. Rule is discharged. No order as to costs.
Law Points
- Amendment of pleadings
- Discretion of trial court
- Premature ground
- Article 4(8) of Law of Divorce
- Portuguese Civil Code
- 1867
Case Details
2014 LawText (BOM) (04) 104
WRIT PETITION NO. 68 OF 2014
Mr. Rohit Bras De Sa for Petitioner, Mr. Prashil Arolkar for Respondent
Mr. Antonio Ferdino Varela
Mrs. Thereza Maria Angela Varela
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Nature of Litigation
Writ petition challenging the order of the District Judge partly refusing amendment of divorce petition.
Remedy Sought
Petitioner sought to challenge the order dated 06.01.2014 of the learned District Judge-2, Panaji, which partly refused leave to incorporate an additional ground for divorce based on Article 4(8) of the Law of Divorce.
Filing Reason
The petitioner's application for amendment to add a ground for divorce under Article 4(8) was refused by the trial court as premature because the 10-year continuous separation period had not expired at the time of filing the amendment application on 17.06.2013.
Previous Decisions
The learned District Judge-2, Panaji, passed an order on 06.01.2014 partly allowing and partly refusing the amendment application.
Issues
Whether the discretion exercised by the learned District Judge-2 in refusing leave to amend the petition by incorporating additional ground for divorce based on Article 4(8) of the Law of Divorce is arbitrary and unreasonable?
Submissions/Arguments
Petitioner argued that the trial court's refusal was arbitrary and unreasonable.
Respondent supported the trial court's order.
Ratio Decidendi
The trial court's discretion to refuse amendment of pleadings is not arbitrary or unreasonable if based on a valid ground such as prematurity of the proposed amendment. The court must consider whether the ground sought to be added is available at the time of the application.
Judgment Excerpts
Whether the discretion exercised by the learned District Judge-2 in refusing leave to amend the petition by incorporating additional ground for divorce based on Article 4(8) of the Law of Divorce is arbitrary and unreasonable?
It is seen from the impugned order that the one of the grounds on which the learned District Judge refused permission to incorporate the additional ground for divorce based on Article 4(8) of the Law of Divorce was that the application for incorporation of this plea was premature as on the date of filing of application, which was filed on 17.06.2013, 10 years period required for continuous separation had not expired.
Procedural History
The petitioner filed a divorce petition. On 17.06.2013, he filed an application for amendment to add a ground under Article 4(8) of the Law of Divorce. The learned District Judge-2, Panaji, passed an order on 06.01.2014 partly allowing and partly refusing the amendment. The petitioner challenged this order by filing Writ Petition No. 68 of 2014 before the High Court of Bombay at Goa.
Acts & Sections
- Law of Divorce (Portuguese Civil Code, 1867): Article 4(8)
