Dismissed

A.K.Abinesh v. M.Deepa

Madras HC7 Jun 2021CRP/554/2021

Case brief

AI extract

What is this about?

The High Court dismissed civil revision petitions filed by a petitioner husband challenging the trial court's refusal to grant leave to amend pleadings. The amendment sought to delete allegations regarding infidelity and character degradation after a divorce petition was dismissed and a decree of restitution of conjugal rights was passed in favor of the wife. The Court held that the amendments wou

What did the court decide?

Civil revision petitions are dismissed; order of the trial court confirming I.A.Nos. 2 and 3 of 2020 is affirmed; connected miscellaneous petitions closed. No costs.

A.K.Abinesh Vs M.Deepa — Matrimonial and Divorce | Madras HC (2021)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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Dated : 07.06.2021

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CORAM

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THE HON'BLE MRS.JUSTICE V.BHAVANI SUBBAROYAN

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C.R.P.Nos.554 and 555 of 2021 and C.M.P.Nos.4748 and 4750 of 2021

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A.K.Abinesh ... Petitioner in both the Petitions

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Vs.

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M.Deepa ... Respondent in both the petitions

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Civil Revision Petitions are filed under Section 115 of Civil Procedure Code to set aside the fair and decreetal order dated 17.12.2020 passed by the learned Principal District Judge, Salem in I.A.Nos.2 & 3 of 2020 in C.M.A.Nos.18 and 19 of 2020 respectively.

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For Petitioner : Mr.L.Mouli

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Since the issues involved in both the petitions are one and the same, they are taken up together and a common order is passed.

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The present Civil Revision Petitions have been filed under Section 115 of Civil Procedure Code to set aside the fair and decreetal order dated 17.12.2020 passed by the learned Principal District Judge, Salem in I.A.Nos. 2 & 3 of 2020 in C.M.A.Nos.18 and 19 of 2020 respectively.

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The petitioner and the respondent are husband and wife. Initially, H.M.O.P.No.24 of 2018 was filed by the petitioner / husband on 19.07.2016 under Section 13(1)(ia) of Hindu Marriage Act praying to dissolve the marriage that held on 20.05.2015 and to grant divorce. In consequence, H.M.O.P.No.96 of 2016 was filed by the respondent / wife on 07.09.2016 under Section 151 Civil Procedure Code seeking to pass a decree of restitution of conjugal rights on the strength of the marriage held between the petitioner and the respondent on 20.05.2015. Both the parties filed their respective counter to the petitions. Upon hearing the submissions and taking note of the averments on either side, the trial court had set aside the petition filed by the petitioner and allowed the petition filed by the respondent.

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https://hcservices.ecourts.gov.in/hcservices/

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Thereafter, the petitioner / husband had filed an appeal in C.M.A.No.18 of 2020 under Section 28 of Hindu Marriage Act r/w Order 41 Rules 1 and 2 Civil Procedure code to set aside the fair and decreetal order passed in H.M.O.P.No.86 of 2018 [H.M.O.P.No.61 of 2016] on the file of Subordinate Judge, Omalur dated 05.02.2020 and the petitioner had also filed C.M.A.No.19 of 2020 under Section 28 of Hindu Marriage Act r/w Order 41 Rules 1 and 2 Civil Procedure code seeking to set aside the fair and decreetal order passed in H.M.O.P.No.24 of 2018 dated 05.02.2020.

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Pending appeals, I.A.No.2 of 2020 was filed by the petitioner under Order 6 Rule 17 and Section 151 of Civil Procedure Code seeking to order amendment of the counter filed by the petitioner in H.M.O.P.No.86 of 2018 on the file of the Subordinate Judge, Omalur. That apart, I.A.No.3 of 2020 was also filed by the petitioner under Order 6 Rule 17 and Section 151 of Civil Procedure Code seeking to order amendment in the petition filed by the petitioner in H.M.O.P.No.24 of 2018 on the file of the Subordinate Judge, Omalur. Resisting the same, counter affidavits were filed by the respondent stating that the proposed amendment will definitely change and alter the root of the proceedings and it will cause prejudice to the respondent herein. For ready reference, the proposed amendments are extracted hereunder:-

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In paragraph 9 of the main petition in H.M.O.P.No.24 of 2018, on the file of the subordinate Judge, Omalur, in the fourth sentence delete the following words:

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'fhuzk; vd;dbtd;why; vjph;kDjhuUf;F gpwe;Js;s FHe;ij kDjhuUf;F gpwf;ftpy;iy/

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In the tenth paragraph in the sixth sentence delete the following:-

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mjd; gpd;g[ Rkhh; xU khjk; kDjhuUld; kDjhuh; tPl;oy; ,Ue;j vjph;kDjhuh; kDjhuiu jhk;gj;jpaj;jpw;f;F xj;Jf;bfhs;stpy;iy. jw;nghJ cwt[ bfhs;tjpy; jdf;F tpUg;gk; ,y;iy vd;W kDjhuUld; cwt[ bfhs;tij kWj;J te;jhh;/

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In paragraph eleven of H.M.O.P.No.24 of 2018, on the file of the Subordinate Judge, Omalur in the second sentence delete the entire second sentence and third and fourth sentence of the same paragraph.

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In the thirteenth paragraph of H.M.O.P.No.24 of 2018, on the file of the Subordinate Judge, Omalur in the first sentence delete the following:

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vjph;kDjhuh; ntbwhU Mqld; fs;sj;bjhlh;g[ itj;J bfhz;L mth; Kykhf FHe;ij bgw;W bfhz;L jw;nghJ kDjhuUld; nrh;e;J thH KoahJ vd;W kWj;jk;.

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In the cause of action paragraph of the H.M.O.P.No.24 of 2018 on the file of the Subordinate Judge, Omalur delete the following that comes after the words: 'mtuJ je;ija[k; vjph;kDjhuhpd; rnfhjh;fs; moj;j rkaj;jpYk; vjph;kDjhuh; ntW Mqld; cwt[ bfhz;L fh;g;gkhd rkaj;jpYk;'

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Both the I.As filed by the petitioner were dismissed. Challenging the same, the petitioner is before this Court by way the present Civil Revision Petitions.

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The learned counsel for the petitioner would submit that the court below failed to consider Order 6 Rule 16 of Civil Procedure Code, which states that the court may at any stage of the proceedings order to struck out or amend any matter in any pleadings, which may be unnecessary, scandalous vexatious. Further, the lower court failed to consider the affidavit filed by the petitioner giving reasons and circumstances for stating certain necessary allegations against the respondent, therefore, the same can be struck out.

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The learned counsel for the petitioner in support of his contention relied on the following orders passed by this Court: (i) C.R.P.No.3015 of 2011 and M.P.No.1 of 2011 dated 26.08.2014 [E.K.Palanisamy Vs. Manonmani and Others].

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(ii) K.Shamsuddin Vs. K.Chellappan reported in 1998(2) MLJ 99

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(iii) Church of South India Trust Vs. Kovil Pillai and Others reported in 2007(5) CTC 595.

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(iv) Soundararajan and another Vs. Vijayalakshmi and Others in C.R.P.(PD) No.4730 of 2014 and M.P.No.1 of 2014.

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Heard the learned counsel for the petitioner and perused the documents placed on record carefully.

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From the perusal of the records, it is seen that the petitioner herein had filed a petition in H.M.O.P.No.24 of 2018 seeking for a divorce of the marriage with the respondent, which took place on 20.05.2015, on the ground that while the petitioner and the respondent were living in the petitioner's house, at jupital night, the petitioner was shocked with the act of the respondent, as she did not allow the petitioner to have a physical relationship stating that she did not like the petitioner and she had physical relationship only as per the dates / timetable given by her brother stating that only at that point of time, they should have physical relationship. That apart, the respondent also did not like to bear a child and often she used to visit her parents house and stay there and every time, she insisted for a separate house away from the petitioner's parents' place.

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https://hcservices.ecourts.gov.in/hcservices/

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It is also the case of the petitioner that the respondent is a qualified Doctor and she proceeded for a training in Chennai, after the marriage took place and the petitioner had let her in the training centre and she had claimed that she was staying with a lady, viz., girl friend and she did not disclose at any point of time that she had a girl friend. After training, her brother only brought her back to Dharmapuri and after coming back to Dharmapuri also, she did not have any physical relationship with the petitioner. Thereafter, she fought with the petitioner and went back to her parents house. Only after one month, it came to the knowledge of the petitioner that the respondent was pregnant and was shocked to hear the same because when the respondent went to Chennai for training, she had stayed with some man [former lover] and only due to the same, she became pregnant. However, the respondent had stated that the petitioner is the father of the child, but the petitioner does not have any connection at all to the pregnancy.

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It is to be noted that the respondent herein had filed a petition under Section 9 of Hindu Marriage Act and Section 151 of Civil Procedure Code in H.M.O.P.No.86 of 2018 denying all the averments and prayed for passing a decree of restitution of conjugal rights between them. She has also stated that she was made to work as a servant maid and was subjected to harassment and cruelty and torture by the petitioner's family. Moreover, as a dutiful wife, the respondent was carrying on the happy marital life with the petitioner. Further, the respondent denied that they did not have any physical relationship. During the pregnancy of third month, the petitioner as well as the respondent proceeded for a Doctor check up and the reports received from the hospital would prove that the petitioner is the father of the child. She also further submitted that she had a bleeding at the time of pregnancy and had to take a immediate steps for arresting the bleeding and she had no other option except to come to the parental house due to the health condition. Even after the male child was born, the petitioner nor his parents came up to see the newly born child and no baby shower function was conducted and prayed for restitution of conjugal rights.

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Contradicting the averments of the respondent, a counter affidavit was filed by the petitioner herein in H.M.O.P.No.86 of 2018. The petitioner and the respondent had differences of opinion, the same is evident from the allegations levelled against the parties. A detailed common decree and Judgment has been passed by the court below, wherein the H.M.O.P. Filed by the petitioner / husband was dismissed and the H.M.O.P. Filed by

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https://hcservices.ecourts.gov.in/hcservices/

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the respondent / wife was allowed on the ground that both the parties should restart their life.

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After the said order, the petitioner herein had filed appeals before the Subordinate Judge, Omalur in C.M.A.Nos.18 and 19 of 2020, in the said appeals, the petitioner has raised various grounds and he has filed I.A.No.2 of 2020 wherein he sought for amending the counter filed in H.M.O.P.No.86 of 2018 on the file of Subordinate Judge, Omalur on the ground that there are certain unnecessary and irrelevant statement made in the counter filed by the petitioner and this would foist his case and the same need not be on record and the counter has to be amended so as to strike off the pleadings made in his counter. As the respondent / wife has gone out of the house after quarreling with the petitioner and scolding his age old parents, he got vexed and he was out of control of his conscious mind for some time and because of the same, while preparing H.M.O.P.No.24 of 2018, certain irrelevant and incorrect particulars were pleaded and now that he realised that those averments are without any basis and only because of the said fact, it has happened and even in the counter in H.M.O.P.No. 86 of 2018, the averments were similarly copied and he does not want the sentence to be remained, which are detailed in the petition and pleaded to remove the same by way of amendment, since the same are unwanted averments, due to which, the petitioner was put to very great mental agony and hardship.

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It is seen from the counter filed by the petitioner / husband that while adducing evidence, the petitioner was conscious in his mind and had control over the word stated in the counter and now, the petitioner is seeking for amending the same at belated stage and the same cannot be sustained on the ground that based on the averments and evidence given on the said amendments, a detailed judgment and decree was passed by the court below and the averment once stated by the petitioner and evidence been deposed on the said proceedings, the same cannot be removed at this stage by way of an amendment.

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It is also seen that the petitioner's averments would definitely degrade the respondent / wife's character and morality of the wife. It is further seen that the respondent / wife would have acquired lot of mental stress due to the false allegation stated in the counter by the petitioner and the proposed amendment will change the very root of the matter and definitely, it would cause prejudice on the respondent's stand. Further, only to get a divorce from the respondent, the petitioner has sought for amendment at this belated stage, therefore, it cannot be acceptable.

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Further, it could seen from the averments, that the marriage had taken place on 20.05.2015 and after that, in the year 2015, June Month, the petitioner has gone for a training and returned back on 27.06.2015. As it could be seen that the marriage is taken place on 25.05.2015 and after two months of marriage, the respondent had proceeded for training for a period of three days and after the said training, the respondent has returned to her parents house, which is also the averment made by the petitioner herein. Further, after the said pregnancy, the petitioner and the respondent have proceeded to Adi Scan and Lab centre, Dharmapuri and both of them were aware of the scan report, which is also marked as Ex.R.21. According to the said document, on 15.10.2015, the respondent had taken a scan and in the said report, it is seen that the last menstruation period as 27.08.2015 [by dates 7 weeks 0 days]. Accordingly, the delivery of the baby was marked as 02.06.2016. As the petitioner has proceeded to the said training in the month of June and her last menstrual period being 27.08.2015, i.e, two months after the training period, the same would show that the pleadings made by the petitioner that he is not the father of the child is completely false. Only upon the said detailed observation, the court below has passed the fair and decreetal order and subsequently, the petitioner had come out with the applications stating that all these averments have to be deleted on the ground that the petitioner was in the confused state of mind etc., cannot be accepted. The said allegations having been affected a person's [viz., the respondent / wife] liberty and the character of the wife has been degraded, the trial court has rightly not accepted the petitioner's case and dismissed the petitions.

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The petitioner has preferred appeals under Order 6 Rule 17 CPC before the appellate Court and if the applications are permitted to be allowed to strike out the pleadings, the entire character of the Judgment and decree passed by the court below would be altered and definitely prejudice would be caused to the respondent / wife and the petitioner's claim that no prejudice would be caused to the wife is not accepted and this Court is of the view that the petitions are not maintainable and there is no error in the Judgment and Decree passed by the court below in rejecting the applications filed by the petitioner. When the petitioner has not established his case and only after due negligence, he has filed the petitions and now, he cannot come and plead that he was out of mind and in confused state etc., which cannot be accepted and permitted. Once the petitioner has gone to such a extent that the child was not born to him and now coming and trying to plead for striking out the same, is not at all convinceable and acceptable one.

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In view of the above, the order passed by the court below in I.A.Nos.2 and 3 of 2020 in C.M.A.Nos.18 and 19 of 2020 is confirmed and the present Civil Revision Petitions are dismissed. Consequently, connected miscellaneous petitions are closed. No costs.

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Assistant Registrar(CS VII)

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//True Copy//

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Sub Assistant Registrar

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