Judgment : 1. Heard. Rule. Rule made returnable forthwith. Heard finally by consent. 2. By this writ petition, the petitioner has challenged the legality and correctness of the order passed on 06.01.2014 by the learned District Judge-2, Panaji partly allowing the application for amendment of the petitioner so as to add one additional ground and partly refusing leave to incorporate another additional ground for divorce. 3. After hearing both the sides, the question that arises for my consideration is: “Whether the discretion exercised by the learned District Judge-2 in refusing leave to amend the petition by incorporating additional ground for divorce based on Article 4(8) of the Law of Divorce is arbitrary and un-reasonable ?” 4. It is seen from the impugned order that the one of the grounds on which the learned District Judge refused permission to incorporate the additional ground for divorce based on Article 4(8) of the Law of Divorce was that the application for incorporation of this plea was premature as on the date of filing of application, which was filed on 17.06.2013, 10 years period required for continuous separation had not expired. Another reason was that there was a pending application filed by the respondent for restitution of conjugal rights in the year 2011, which fact showed that de-facto separation was not freely consented. 5. Mr. Rohit Bras de Sa, learned Counsel appearing on behalf of the petitioner has invited my attention to the relevant portion of the order passed by the learned District Judge showing that though the learned District Judge has placed her reliance upon the cases cited by the learned Counsel for the petitioner, the ratio of the cases was not properly applied. He submitted that in these very cases, one of which is the case of Smt. Sheetal Prakash Pai nee Vijaya Bhangui vs. Dr. He submitted that in these very cases, one of which is the case of Smt. Sheetal Prakash Pai nee Vijaya Bhangui vs. Dr. Prakash Ramnath Pai [2010 (112)BOM LR 4943] and second is the decision rendered in the case of Alvito Laurento Fernandes vs. Maria Elso de Aliveira Gomes in First Appeal No. 66 of 1997 on 20.10.2000 by the learned Single Judge of this High Court, Goa Bench, it has been clearly held that while deciding the issue of the de-facto separation under Article 4(8) of the Law of Divorce, what is required to be seen and assessed by the Court is as to whether there is de-facto separation for continuous period of 10 years and it is not necessary to go into the cause of separation of the spouses and it is something which could be inferred from the conduct of the parties and the evidence on record. He has also submitted that in any case it is well settled law, while deciding amendment application, the court cannot go into the merits of the plea sought to be incorporated by way of amendment. Therefore, he has submitted that additional ground to be incorporated in the petition ought to have been allowed by the learned District Judge. 6. Mr. Arolkar, learned Counsel appearing on behalf of the respondent submits that the application as filed by the petitioner was premature and on the date of the application, period of 10 years of separation was not completed and that there was also no free consent by the respondent. He further submits that the respondent filed an application for restitution of conjugal rights which was pending and, therefore, learned District Judge was right in finding that pendency of the application showed that there was no free consent. He has also submitted that even if the amendment sought for is allowed, it would relate back to the date of application and that would mean the application was prematurely filed. He has therefore, urged that the impugned order is consistent with the well settled principles of law and does not call for any interference in the writ jurisdiction of this Court. 7. I have already referred to the reasons on which the plea of additional ground for divorce has been dis-allowed to be taken by the petitioner. He has therefore, urged that the impugned order is consistent with the well settled principles of law and does not call for any interference in the writ jurisdiction of this Court. 7. I have already referred to the reasons on which the plea of additional ground for divorce has been dis-allowed to be taken by the petitioner. Atleast from one of those reasons, it becomes clear that the learned District Judge has entered into the merits of the plea sought to be taken by the petitioner. While considering an amendment application, it is well settled law, it is not open to the Court to enter into the merits of the plea sought to be raised and the Court has to decide the application purely on the basis of the principles applicable to the amendment of pleadings contained in Order 6 Rule 17 of C.P.C. The relevant considerations could be, whether the amendment is necessary for deciding the real controversy between the parties, what is the stage of the proceeding when amendment application is filed, and if it is filed after commencement of trial, whether the plea could have been raised before commencement of the trial. The learned District Judge, however, by finding that pendency of application for restitution of conjugal rights showed that separation was not freely consented, decided on merits of the plea, which is not permissible. Therefore, on this ground itself, the impugned order cannot be sustained in law. 8. Even otherwise, it is seen that the learned District Judge has followed the law laid down in the cases of Smt. Sheetal Prakash Pai and Alvito Laurento Fernandes cited (supra), and therefore, one fails to understand as to how he could have proceeded to say that the circumstances of the case indicated that there was no free consent to the separation of the spouses merely because the application for restitution of conjugal rights was pending. In the case of Alvito Laurento Fernandes (supra) in particular, it has been clearly laid down that for proving divorce on the ground under Article 4(8) of the Law of Divorce, the free consent is not an issue to be proved and it is a presumption that flows from the proof of three facts, namely, (a) the couple is de-facto separated. (b) the separation has been un-interrupted and that (c) the separation is for more than 10 years. (b) the separation has been un-interrupted and that (c) the separation is for more than 10 years. Similar law has been laid down in the case of Smt. Sheetal Prakash Pai (supra). Therefore, it was not open to the learned District Judge to say that additional ground for divorce cannot be allowed to be taken by the petitioner. 9. As regards the objection that the application for amendment of plea by incorporating the aforesaid plea was prematurely filed as on the date of application, this very ground was not available to the petitioner, I must say, in such a case, the Court has to ensure that cause of justice is advanced and not frustrated for some technical reasons. In this case, the application was indeed prematurely filed as the requisite period of 10 years was short by three months on the date of application. Admittedly, the arguments were advanced before the learned District Judge in December, 2013 and the impugned order was passed on 06.01.2014. When the arguments were completed, period of 10 years was crossed and it was nobody's case that the parties had resumed cohabitation or there had been any break in continuous period of separation of the spouses. Therefore, the learned District Judge ought not to have been so technical and rigid in holding that the plea was premature. In any case, the question of tenability of the additional plea could have been left open to be decided on merits, as there were subsequent events which had a bearing on the ripening of the plea or otherwise. The importance of subsequent events has been considered by the learned Single Judge of this Court in the case of Smt. Sheetal Prakash Pai (supra), by referring to the observations of Hon'ble Apex Court in the case of Ramesh Kumar Vs. Kesho Ram 1992 Supp (2) SCC 623, in paragraph 6, which are reproduced thus: “6. The normal rule is that in any litigation the rights and obligations of the parties are adjudicated upon as they obtain at the commencement of the lis. But this is subject to an exception. Kesho Ram 1992 Supp (2) SCC 623, in paragraph 6, which are reproduced thus: “6. The normal rule is that in any litigation the rights and obligations of the parties are adjudicated upon as they obtain at the commencement of the lis. But this is subject to an exception. Wherever subsequent events of fact or law which have a material bearing on the entitlement of the parties to relief or on aspects which bear on the moulding of the relief occur, the court is not precluded from taking a 'cautious cognizance' of the subsequent changes of fact and law to mould the relief.” 10. By not keeping the said question open to be decided on merits, the learned district Judge has acted un-reasonably and, therefore, for this reason also the impugned order cannot be upheld. 11. In the circumstances, I do not find any merit in the argument canvassed on behalf of the respondent. For the reasons stated earlier, I am of the view that the impugned order is unreasonable and arbitrary, and it needs to be quashed and set aside to the extent it rejects incorporation of additional ground under Article 4(8) of the Law of Divorce. The point is answered accordingly. 12. The impugned order is quashed and set aside to the extent of its rejecting the incorporation of additional ground under Article 4(8) of the Law of Divorce. The amendment application on this count stands allowed. Amendment to be carried out within two weeks. Consequential amendments are also allowed and the respondent can make consequential amendments within the time granted by the trial Court. Additional issue on this aspect, if any, may be framed in accordance with law. The writ petition is allowed accordingly. 13. Rule is made absolute in above terms. 14. Writ petition stands disposed of.