ABDUL HABIB KHAN v. RAFAT BEGUM — 1998 DIGILAW 205 (ORI)

ORDER P.K. Tripathy, J. - Heard learned counsel appearing for both the parties. On consent, this revision is disposed of at the stage of hearing on admission. 2. Vide order dated 8.8.1996 in Criminal Proceeding No. 282 of 1992 Learned Judge, Family Court disposed of three petitions filed by the petitioner by way of rejecting two petitions and allowing in part the third petition i.e. the petition for amendment of the show cause. Learned counsel for the petitioner states that he presses this revision only against the order in partly allowing the amendment petition and not on the order in rejecting the other two petitions. Hence, for the purpose of record, this revision is confined to examine legality and correctness of that part of the impugned order. 3. Facts relevant for the present revision are stated thus: On 23.7.1992 the opposite party filed petition u/s 125 of the Code of Criminal Procedure, 1973 (in short, 'the Code') claiming for maintenance from the petitioner on the grounds of ill-treatment, cruelty and desertion. Petitioner after his appearance filed show cause on 28.9.1993 without disputing the marital status of the parties. Attempt for reconciliation failed as per the report of the counseler noted in the order sheet dated 16.11.1995. On 31.10.1995 petitioner filed petition for amendment with the prayer to delete portions each from paragraphs with the prayer to delete portions each from paragraphs 5, 6 and 8 to 10 of the show cause besides seeking addition to the show cause of the averments made in paragraphs 4 to 8 of the amendment petition. On 31.10.1995 petitioner filed petition for amendment with the prayer to delete portions each from paragraphs with the prayer to delete portions each from paragraphs 5, 6 and 8 to 10 of the show cause besides seeking addition to the show cause of the averments made in paragraphs 4 to 8 of the amendment petition. In short, it may be noted that the proposed deletion was relating to the averments made: (i) That even if maintenance will be granted the petitioner (opposite party in this revision) being young and having six unmarried sisters, it will stigmatise them (from paragraph 5); (ii) that petitioner may come and stay with her husband (present petitioner) (from paragraph 6); (iii) that petitioner was at fault for deserting her husband yet he is willing to maintain her if she would return with an adjusting mentality (from paragraph 8); (iv) that he invites the wife to rejoin with the promise to maintain her with all love and affection (from paragraph 9); and (v) that the second wife of the opposite party (petitioner in this revision) shall be dominated by the petitioner, she being the first wife and there shall not be any difficulty if she will desire to adjust. In short, the proposed additions through amendment are that: (i) Complaint Case No. 15 of 1997 filed by the petitioner (wife) was forwarded to Lalbag Police Station and the matter was investigated and subjudice vide G.R. Case No. 1249/92 in the Court of S.D.J.M. Cuttack (paragraphs 4, 5 and 7); (ii) Police seized 'Talaknama' dated 11.10.1992 and that "opposite party has divorced the petitioner by uttering 'talak' thrice and informed the same to the petitioner through notice" (paragraph 6); and (iii) inadvertently the fact of giving 'talak' on 11.10.1992 was not mentioned in the show cause filed by him (paragraph 8). 4. Learned Judge, Family Court allowed the prayer for adding paragraphs 4 and 5 of amendment in the show cause but rejected the prayer for addition of the fact in paragraphs 6 to 8 of the amendment petition on the ground that it would amount to allowing introduction of new facts. In that connection, the lower Court relied upon two citations viz. (i)AIR 1991 Ors. 101 : Nakula Behera and Ors. v. Damodar Swain, Tahasildar, Banki and {ii) AIR 1976 SC 686 (not describing the names of the parties). In that connection, the lower Court relied upon two citations viz. (i)AIR 1991 Ors. 101 : Nakula Behera and Ors. v. Damodar Swain, Tahasildar, Banki and {ii) AIR 1976 SC 686 (not describing the names of the parties). It may be noted that on a reference to AIR 1976 SC 686 it is noticed that no law or principle relating to amendment was considered or decided in that case. Apart from that, reporting of that decision starts at page 683 and it relates to a service dispute decided in the forum of Labour Court. It further reveals on a reference to AIR 1976 SC 686 that two decisions reported at different pages deals with the factum of amendment on different context which are not relevant for the present case. It is hoped and trusted that learned Judge, Family Court who is a senior Judicial Officer in the rank of District and Sessions Judge should be careful in future not to state misleading facts and law in his judgments and orders or to carelessly deal with the case laws in the above noted manner. 5. Learned counsel for the petitioner argues that keeping in view the personal law governing the parties and the fact and circumstances that 'talak' can be given at any time, the Court below losing sight of the provisions of law vis-a-vis contentions raised in the amendment petition wrongly rejected prayer for amendment in part. He further argues that an admission can be withdrawn by amendment if it is due to fault or negligence of the lawyer and in that connection relies upon the case of Gobinda Sahoo Vs. Ram Chandra Nanda and Another. Learned counsel for the opposite party, on the other hand, argues vehemently opposing to the amendment petition. According to him if the proposed amendment in deleting portions from paragraphs 5, 6, 8, 9 and 10 of the show cause (as detailly noted in paragraph 3) will be allowed then it will result in withdrawal of admission made relating to marital status. So far as the prayer for addition of plea is concerned, according to him, it will amount to allowing the petitioner to raise new and inconsistent plea relating to marital status. 6. A revisional Court is not supposed to go into the disputed facts and express any opinion on that when the matter is still subjudice in the original Court. So far as the prayer for addition of plea is concerned, according to him, it will amount to allowing the petitioner to raise new and inconsistent plea relating to marital status. 6. A revisional Court is not supposed to go into the disputed facts and express any opinion on that when the matter is still subjudice in the original Court. Revisional Court should confine itself to examine legality and correctness of the order under challenge and to record the findings accordingly. In view of that settled position of law, this Court confines its finding to the legality and correctness of the impugned order though both the parties, in extenso argue on facts. 7. In the case of Gobinda Sahoo (supra) while allowing amendment of written statement by way of inserting assertion that defendant was in possession, which had the effect of withdrawing the statement that he was not in possession, it was allowed on the ground that for the misconception of law of the lawyer party should not suffer and principle of non-permissibility of withdrawing an admission is not inflexible and it can be applied on proper circumstance. In the case of Nakula Behera (supra) relying upon the decision of the Supreme Court, this Court held that a petition under Order VI Rule 17, CPC should not be allowed if the intention of the party seeking amendment is mala fide, aimed at delaying the due process of law, the other side would suffer grave injustice or materially prejudice and the ends of justice will be subserved. It is further held that the power to allow amendment of pleadings is intended to serve the ends of justice and is not fettered by narrow and technical limitations. But amendments having the consequence of introduction of new case and change of the nature of the case or defence should not be permitted. In both the above citations petitions under Order VI, Rule 17 of the CPC relating to amendment of written statement was under consideration. It is fairly stated at the Bar that the procedure in the CPC are not strictly applicable to a proceeding u/s 125 of the Code. In both the above citations petitions under Order VI, Rule 17 of the CPC relating to amendment of written statement was under consideration. It is fairly stated at the Bar that the procedure in the CPC are not strictly applicable to a proceeding u/s 125 of the Code. They further state that though Chapter IX of the Code is self-contained relating to the procedure to be followed in disposal of maintenance application and even if there is no provision specifically providing therein for amendment of the petition for maintenance or show cause yet the Judge, Family Court has power to allow amendment for a just decision in the case. 8. Proceedings under Chapter IX of the Code are in the nature of a Civil proceeding. Proceedings of the Civil Court are substantial whereas the proceedings under Chapter IX of the Code are of a summary nature. Apart from that, standard of pleadings and proof of fact are not strictly followed in a proceeding u/s 125 of the Code. For example, to prove her status as the wife of the opposite party, in a civil proceeding there should be necessary averments in the pleading as well as strict proof of the factum of marriage by adducing required evidence in a case of dispute regarding the marital status, but in a proceeding u/s 125 such standard of pleading or proof is not essential. Evidence sufficient to presume the marriage and the marital status is sufficient in such a case. The whole purpose of analysing the matter in the aforesaid manner is to emphasise on the finding that though the proceeding under Chapter IX of the Code are civil in nature but the strict formula applied for adjudication of a civil proceeding or petition filed therein cannot and should not be mutatis mutandis applied in such a criminal proceeding. Thus, the principles and restrictions regarding amendment as applied to a civil proceeding be followed but with little relaxation, where it is necessary and that will depend upon the facts and circumstances which may be distinguishable from case to case. Thus, it can be safely concluded that the standard of scrutiny necessary for allowing or rejecting amendment petition in a civil suit need not ipso facto be applied to a proceeding under Chapter IX of the Code. 9. Thus, it can be safely concluded that the standard of scrutiny necessary for allowing or rejecting amendment petition in a civil suit need not ipso facto be applied to a proceeding under Chapter IX of the Code. 9. In this case petitioner's attempt is to insert the plea of 'Talak' and in that pursuit he prayed for withdrawal of the statements relating to continuance of the marital status and the offer to stay together. When the dispute relating to the maintenance is between the husband and wife belonging to Muslim community, their personal law has a say in the matter. In the case of Sk. Mohiuddin v. Hasina Bibi 1988 (II) OLR 163 this Court relying upon a catena of decisions and principles from the text and commentaries on Mohammedan Law held that: "7. Having regard to the catena of decisions stretching over half a century and the text books, there cannot be any doubt that the law is, as has been held by the authorities, that divorce becomes effective from the date of filing of written statement, rejection of the plea of earlier divorce pleaded in the written statement notwithstanding xx xx xx xx xx xx." 10. In view of the above principle and foregoing findings relating to the extent up to which the discretion should be allowed in consideration of amendment petition in a proceeding u/s 125 of the Code it becomes earlier for this Court to record the finding that learned Judge, Family Court without due application of his mind to the facts and circumstances vis-a-vis the personal law on 'talak' rejected the prayer for inserting the plea of divorce as noted in paragraphs 4 to 8 of the amendment petition (i.e. paragraph 4 of the schedule of amendment as noted at the bottom of the petition). It may be noted here that the argument of the opposite party regarding creeping of inconsistent plea is not consequential because of the peculiarity of the personal law relating to the 'Talak'. It is needless to say that the petitioner has either to properly explain or to suffer for the inconsistency when the matter shall be taken up for recording of evidence and hearing of the case. 11. It is needless to say that the petitioner has either to properly explain or to suffer for the inconsistency when the matter shall be taken up for recording of evidence and hearing of the case. 11. So far as the prayer of amendment by way of deleting certain portions from the show cause (as detaily noted earlier) is concerned, that prayer was rightly rejected in the absence of any proof regarding 11. mistaken advice by the lawyer so also on the ground of non-permissibility of withdrawal of an admission of that nature. Accordingly, the proposed amendment for inserting the plea of divorce is allowed and to that extent the impugned order is set aside and consequentially the revision is allowed in part. Follow up action for obtaining amended copy of the show cause etc. and consequential orders in that regard be taken up by learned Judge, Family Court. The dispute being pending since 1992 learned Judge, Family Court is directed to take proper steps for early disposal of the case. Send back the L.C.R, immediately and preferably by 9.7.1998.