Case Note & Summary
The petitioner, the husband, had filed a divorce petition before the Family Court at Nagpur on the ground of cruelty, which was maintainable at the time of filing. During the pendency of this petition, the statutory period of two years for desertion elapsed, allowing the petitioner to additionally claim divorce on that ground. He accordingly filed an application for amendment (Exh.30) to include the ground of desertion. The Family Court rejected the application by order dated 19 July 2016, holding that for desertion to be a ground for divorce, the two-year separation must have elapsed before the institution of the petition, not during its pendency. Aggrieved, the petitioner approached the High Court by way of a writ petition under Article 227 of the Constitution, seeking to quash the Family Court's order and allow the amendment. The respondent opposed the petition, supporting the Family Court's reasoning. The High Court observed that the present case was not one where a petition originally filed on the ground of separation was sought to be made maintainable by the passage of time during pendency. Instead, the original petition was already maintainable on cruelty, and the new ground of desertion had become available because the statutory period elapsed while the matter was pending. Relying on a judgment of the Allahabad High Court in Sanjiv Kumar Sinha v. State of U.P. & oth., 2008(2) ADJ 584, the Court held that the petitioner could certainly amend the petition to include the additional ground. The Family Court's view was found to be untenable. Consequently, the High Court set aside the impugned order and allowed the amendment application. However, to prevent any prejudice to the respondent, the Court clarified that the amendment would relate back to the date of filing the amendment application, not the original petition, and that all rights and contentions of the parties on merits remained open. The writ petition was thus disposed of with no order as to costs.
Headnote
A) Family Law - Divorce - Amendment of Petition to Add Ground of Desertion - Statutory Period - Hindu Marriage Act, 1955, Section 13(1)(ib) - The Family Court rejected the amendment on the ground that two years' desertion must have elapsed before the institution of the original petition; the High Court distinguished a case where a petition originally filed on separation seeks to become maintainable by lapse of time during pendency. Since the original petition was maintainable on cruelty and the statutory period elapsed during pendency, the petitioner could amend to include desertion. The Court relied on Sanjiv Kumar Sinha v. State of U.P. & oth. (2008(2) ADJ 584) and held that the amendment was permissible. The amendment was allowed, but would relate back only to the date of the amendment application, not the original petition, and all rights and contentions on merits were kept open. Held that the impugned order of the Family Court was set aside and the amendment was allowed (Paras 3-7).
Issue of Consideration
Whether a divorce petition originally filed on ground of cruelty can be amended to add the ground of desertion when the statutory period of two years' desertion elapses during the pendency of the petition, not before its institution.
Final Decision
Rule made absolute. The impugned order dated 19 July 2016 passed by the Family Court, Nagpur, is quashed and set aside. The amendment application Exh.30 is allowed. The amendment shall relate back to the date of filing of the application for amendment and not to the date of presentation of the original petition. All rights and contentions of the parties on merits are kept open. Parties to bear their own costs.
Law Points
- amendment of pleadings
- desertion as ground for divorce
- two-year separation period
- elapsing during pendency of petition
- relation back of amendment
- exercise of writ jurisdiction
- inherent power of court to allow amendment
- Section 13(1)(ib) Hindu Marriage Act
- 1955
