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2014 DIGILAW 1175 (PNJ)

Gursharan Singh Gill v. Amanvir Kaur

2014-08-11

RAKESH KUMAR JAIN

body2014
Rakesh Kumar Jain, J. 1. This revision petition is directed against the order dated 25.7.2013 by which application filed by the petitioner for amendment of the petition has been declined. The petitioner filed petition under Section 13 of the Hindu Marriage Act, 1955 [for short 'the Act'] for divorce alleging that he got married with the respondent on 18.8.1991 at Ludhiana according to Sikh rites. They were blessed with a son on 19.11.1994, who is in custody of the respondent. The grounds taken by the petitioner for divorce is cruelty and desertion. Respondent filed written statement to the divorce petition on 9.12.2011 and so far the issues have not been framed. The petitioner filed an application under Order 6 Rule 17 of the Code of Civil, Procedure, 1908 [for short 'the CPC'] on 18.4.2012 to add para No. 9A and 11A in the divorce petition, which read as under:-- "9-A That as the respondent was used to quarrel with the petitioner on one pretext or the other and used to remark that she is doctor and she is of liberal mind and feel suffocated in joint family and compelled the petitioner to shift to House No. 53-G, Bhai Randhir Singh Nagar, Ludhiana in the month of November 2000 that as the petitioner has some business so the petitioner used to leave the house early in the morning and returned late in the night. That one day in the month of January, 2001, the petitioner was not feeling well, so he returned home within informed the respondent and found that the bedroom was bolted inside the knocked, but no response came from inside and he peed through window as the curtain on the window was lifted and found that Dr. Sarvesh Mathur was having sexual intercourse with the respondent and both were totally naked and when he again knocked the door repeatedly after considerable time door opened and found that respondent was having nighty and Dr. Sarvesh Mathur was in the Underwear only and when the petitioner asked her that she should be ashamed of doing such act, she told that as she was not feeling well, so she had summoned Dr. Sarvesh Mathur to give her medicine and he was having sex with her against her wishes, while the petitioner was talking with the respondent, Dr. Sarvesh Mathur to give her medicine and he was having sex with her against her wishes, while the petitioner was talking with the respondent, Dr. Sarvesh Mathur slipped away from there and as the petitioner was not interested to wash dirty linen in the public, so he kept mum, but he warned the respondent and the respondent also promised that in future, she will not have any connection with Dr. Sarvesh Mathur. After some days, the neighbours told the petitioner that Sarvesh Mathur visited the house of the petitioner at House No. 53-G, Bhai Randhir Singh Nagar, Ludhiana in his absence and spends a lot of time in the company of the respondent. As the respondent was not stopping her relations with Dr. Sarvesh Mathur, so he (petitioner) thought, a better sense will prevail upon the respondent No. 1, when she shifts to House No. 57-1, Sarabha Nagar, Ludhiana, where the parents of the petitioner were residing and with great difficulty, he managed to take her back to his parental house at House No. 57-1, Sarabha Nagar, Ludhiana, where the parents of the petitioner were residing and with great difficulty, he managed to take here back to his parental house at House No. 57-1, Sarabha Nagar, Ludhiana. Now it has come to the knowledge of the petitioner that the real motive of the respondent No. 1 in shifting from House No. 57-1, Sarabha Nagar, Ludhiana was that there will be nobody to check her illegal relations with Dr. Sarvesh Mathur. That on reaching House No. 57-1, Sarabha Nagar, Ludhiana for some time, she behaved properly, but again started saying that she will not stay there with the parents of the petitioner. That one day, petitioner received a telephone call from his mother that she is not feeling well and the petitioner should take her to some doctor and when the petitioner told that he is coming and in the meanwhile the respondent No. 1, who is also doctor, will look after her, on which the mother of the petitioner told that she has left the house on the pretext that as usual to attend the job. In fact, she was not doing any job at that time and all of a sudden, it struck to the petitioner that she may be with Dr. Sarvesh Mathur and while coming from Moga, the hospital, where Dr. Mathur works falls on the way. In fact, she was not doing any job at that time and all of a sudden, it struck to the petitioner that she may be with Dr. Sarvesh Mathur and while coming from Moga, the hospital, where Dr. Mathur works falls on the way. The petitioner went there and the assistant of Dr. Mathur told that Dr. Mathur and Dr. Amanvir Kaur are in private room of Dr. Mathur and Dr. Mathur told him not to interfere there for some time as they were discussing some serious matter and when the petitioner asked whether previously also Dr. Amanvir Kaur comes there, he told the petitioner that she (Dr. Amanvir Kaur) comes to that hospital and spends lots of time with Dr. Mathur in his private room and Dr. Mathur always order them not to interfere them, even if serious patient is tie. Having this the petitioner did rushed to private room of Dr. Mathur, which was bolted from inside and knocked the room with heavy hand. After considerable time door was opened found, Dr. Mathur and Dr. Amanvir Kaur both were there and when the petitioner asked the respondent No. 1 as to why she still having illicit relations with Dr. Mathur, when she had promised not to continue the same, on which Dr. Amanvir Kaur told the petitioner that she cannot leave her, in fact Dr. Mathur is also going to divorce ins wife and both will live as husband and wife. As the prestige of the family was involved with great difficulty brought the respondent No. 1 to the house and from where she left the house in the month of July, 2001 after quarreling them." "11-A That few days back, while searching some papers, the petitioner found a telephone bill of Dr. Sarvesh Mathur of Satluj Hospital and found that in the month of January, 2001, this Amanvir Kaur respondent had repeatedly called Dr. Sarvesh Mathur and in fact, the sole aim of the respondent for shifting from the house of the petitioner House No. 53-G, Bhai Randhir Singh Nagar, Ludhiana was that there should be no hindrance in her meeting with the respondent No. 2 because in the house of the petitioner at 57-1, Sarabha Nagar, Ludhiana, the old parents were residing. Some days back, Dr. Some days back, Dr. Atul Ashutosh met the petitioner and in routine, he told the petitioner that whether Amanvir Kaur has left the company of Sarvesh Mathur and he also told that Amanvir Kaur and Dr. Sarvesh Mathur used to spend a lot of time in the private room of the hospital of Dr. Sarvesh Mathur after bolting the door inside and Dr. Sarvesh Mathur has given clear instructions to his assistant not to interfere them while in their private room. Dr. Pardeep Singh has told the petitioner that whether Amanvir Kaur, respondent No. 1 has obtained the divorce from the petitioner because Dr. Amanvir Kaur and Dr. Sarvesh Mathur has met him in MBD Mall and they were just doing the purchases by holding the hand and Amanvir Kaur told him that she had obtained divorce from the petitioner and has married to Dr. Sarvesh Mathur and that on enquiries, it was revealed that Dr. Sarvesh Mathur is residing in the house of the mother of Dr. Amanvir Kaur along with Amanvir Kaur as husband and wife. That as the petitioner was interested to keep the honour of his family and he was not interested to wash the dirty linen in the public and as Amanvir Kaur has deserted the petitioner, so he did not thought proper to mention the fact of relation with Dr. Sarvesh Mathur and now as Amanvir Kaur is openly residing as husband and wife and he (Dr. Sarvesh Mathur) is also residing in the house of her mother at House No. 223-H, Bhai Randhir Singh Nagar, Ludhiana, so know "MY CUP OF PATIENCE HAS NOW FILLED UP TO BRIM, so he think that true fact be brought to the knowledge of this court. The petitioner and the respondent No. 1 is living in adultery with the respondent No. 2." 2. The application was contested by the respondent and the learned trial Court vide its order dated 25.7.2013 dismissed the application on the ground that the facts sought to be pleaded were within the knowledge of the petitioner and are scandalous in nature. 3. The petitioner and the respondent No. 1 is living in adultery with the respondent No. 2." 2. The application was contested by the respondent and the learned trial Court vide its order dated 25.7.2013 dismissed the application on the ground that the facts sought to be pleaded were within the knowledge of the petitioner and are scandalous in nature. 3. Learned counsel for the petitioner has argued that initially when the case was filed, it was decided by the petitioner to seek divorce on the ground of cruelty and desertion but later on, he decided that he would also bring on record the act of adultery on the part of the respondent by way of making an averment contained in para No. 9A and 11A. He has given reason that he was interested to keep the honour of his family and was not interested to wash dirty linen in the public, therefore, he tried to avoid the averments with regard to the act of adultery on the part of the respondent. During the pendency of the petition, before the issues could have been framed, he thought of bringing this fact also on the record so that it may also be decided as to whether he should live with a woman who has been living in adultery. 4. Learned counsel for the petitioner has also argued that since the application has been filed before the trial had commenced, therefore, the learned Court below has erred in exercising its jurisdiction in declining the relief. 5. On the other hand, learned counsel for the respondent has vehemently argued that there is a delay in seeking the amendment as the explanation sought to be incorporated in the pleadings by addition of para 9A and 11A are very old much less of the year 2001 and were very much within the knowledge of the petitioner, therefore, he does not fulfill the basic requirement of amendment that the facts were not within his knowledge and as such there is no error committed by the Court below in declining the relief. He has also relied upon a decision of this Court in the case of "Bahadur Singh and another v. Avtar Singh, (2007-3)147 P.L.R. 628. 6. I have heard both the learned counsel for the parties and after examining the record, am of the considered opinion that this revision petition deserves to be allowed. He has also relied upon a decision of this Court in the case of "Bahadur Singh and another v. Avtar Singh, (2007-3)147 P.L.R. 628. 6. I have heard both the learned counsel for the parties and after examining the record, am of the considered opinion that this revision petition deserves to be allowed. It is not in dispute that the application for amendment has been filed when the parties were still at the stage of pleadings. Provision of amendment of the pleadings under Order 6 Rule 17 of the CPC enables both the parties, namely, the petitioner and the respondent to bring more facts on record, either by explanation or otherwise, because the issues are yet to be framed and the evidence has not been started. Here in this case, only the pleadings are over and the explanation has been given by the petitioner that earlier he decided not to bring his own family in dispute by alleging that his wife was living in adultery with Dr. Sarvesh Mathur but later on with the passage of time, he felt that he should bring this fact on record for the purpose of seeking divorce from the respondent and therefore, hesitantly he has sought the amendment even after the written statement is filed by the respondent. 7. To my mind, there is an error committed by the learned trial Court in dismissing the application of the petitioner by taking a conservative view that the fact was within his knowledge and could have been brought by him in pleadings when the petition was filed. The Court should have seen that the facts, which are sought to be produced on record, as the petitioner has categorically urged that initially he was interested to keep the honour of the family and was not interested to wash the dirty linen in the public that his wife, who deserted him was living with another person, namely, Dr. Sarvesh Mathur but when he found that there is no likelihood of compromise between the parties, he has thought of bringing the said fact also on record which would not only bring the name of the family of the respondent but also of the petitioner where respondent to disrespect has been married. Sarvesh Mathur but when he found that there is no likelihood of compromise between the parties, he has thought of bringing the said fact also on record which would not only bring the name of the family of the respondent but also of the petitioner where respondent to disrespect has been married. In view of the aforesaid discussion, especially when the application has been filed at the stage when the issues have not been framed, the learned Court below should have allowed the amendment. Consequently, the present revision petition is allowed and the impugned order is hereby set aside.