Disposed

Chaya Shaba Naik @ Chaya Vijay Shirodkar v. Vijay Nanu Shirodkar

Bombay HC16 Jun 2021WP/202/2021

Case brief

AI extract

What is this about?

The High Court of Bombay at Goa disposed of a writ petition challenging a Trial Court's order allowing amendment of a matrimonial petition from annulment to divorce. Finding no jurisdictional error and noting the amendment was necessary to correct a mistake, the Court dismissed the application with costs directed to be paid to the original petitioner.

What the court decided

AI extract

Chaya Shaba Naik @ Chaya Vijay Shirodkar Vs Vijay… — Matrimonial and Divorce | Bombay HC (2021)

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(8) WP 202 2021

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IN THE HIGH COURT OF BOMBAY AT GOA

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WP/202/2021

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 1. Mrs. Chaya Shaba Naik alias
 Chaya Vijay Shirodkar,
 Age about 35 years,
 daughter of Shri Shaba Naik,
 wife of Shri Vijay Nanu Shirodkar,
 married, service,
 Presently residing at house no.258,
 Meharfarm, Uguem, Sanguem-Goa. …... Petitioner

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 V e r s u s

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1. Mr. Vijay Nanu Shirodkar,
 Son of Shri Nanu Shirodkar,
 age about 39 years, married,
 service, resident of house no.02,
 Vikas Nagar Pajimol, Sanguem-Goa. ….... Respondent
 (The above are the registered addresses).

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Mr. Phaldesai Chandru Purushottam, Advocate for the Petitioner.

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 CORAM: M. S. SONAK, J.
 DATE : 16 th June, 2021.

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Oral Order:

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Heard Mr. Purushottam Paldesai, the learned counsel for the petitioner.

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2. The challenge in this petition is to the order dated 1/3/2021, by which

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the learned Trial Court has permitted the original petitioner/plaintiff in

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Matrimonial petition No.26/2018/A to amend the matrimonial petition.

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3. Mr. Phaldesai, the learned counsel for the petitioner submits that there is

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(8) WP 202 2021

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a difference between annulment of marriage which was applied for in the

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original petition and a divorce which is now sought to be applied for by
amending the petition.

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4.He submits that an amendment which will change the nature of the
petition cannot be allowed. He submits that the application seeking leave to
amend was filed after the trial commenced and there is no explanation for the
delay involved. He submits that the amendment is causing severe prejudice to
the petitioner and, therefore, no leave should have been granted by the trial

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Court. He submits that the even the costs of Rs.800/- have not been paid by the
original petitioner.

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5. Having considered the submissions made by Mr. Phaldesai and having

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perused the material on record, I find no jurisdictional error in the impugned
order so as to warrant interference under Article 227 of the Constitution of
India.

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6. There was an obvious error in quoting the correct provision of law. Instead of quoting Article 4(4), the original petitioner, had made reference to

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Article 18 of the Family Laws, which deal with the provision of annulment of

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marriage. If the plaint is perused in its entirety, it is apparent that the original
petitioner was desirous of seeking a divorce, and not an annulment. No doubt,

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(8) WP 202 2021

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there was some amount of laxity in the pleadings as originally filed. That is the
reason why, amendment was applied for and leave, was quite correctly been
granted by the learned trial Court.

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7. According to me, no serious prejudice will occasion the petitioner herein

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if the impugned order is allowed to stand. Based upon the line of cross
examination, the original petitioner must have realized the error in the
pleadings and therefor, applied for leave to amend. The petition was instituted in
the year 2018 and the amendment was applied for in the year 2019. Therefore,
it is not as if there there is some unreasonable delay involved. If the petitioner is
desirous to further cross examination, then the petitioner can always apply to the
trial Court and the trial Court will consider grant of such leave, now that the
leave has been granted to amend the petition. However, this is no ground to
interfere with the impugned order which cannot be said to be in excess of the
jurisdiction conferred upon the learned trial Judge.

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8.Some amount of prejudice that may have occasioned the petitioner is
compensated by award of costs. If the costs are not yet paid then the trial Court
will ensure that the costs are paid by the original petitioner before the original
petitioner proceeds further in the matter based on the amended pleadings.

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9. For all the aforesaid reasons, the present petition is not entertained. The

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(8) WP 202 2021

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shall be no order as to costs.

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10.The petitioner to place authenticated copy of this order before the trial

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Court on the next date fixed in the matter and also furnish a copy of the same to

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the learned counsel for the respondent.

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 M. S. SONAK, J.

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Ap/-

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MARIA AURA Digitally signed by MARIA AURA PEREIRA PEREIRA Date: 2021.06.17 18:35:34 +05'30'

Chaya Shaba Naik @ Chaya Vijay Shirodkar v. Vijay Nanu Shirodkar

Case brief

What is this about?

What the court decided

Chaya Shaba Naik @ Chaya Vijay Shirodkar v. Vijay Nanu Shirodkar

Case brief

What is this about?

What the court decided

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Issues for consideration

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Parties & counsel

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