Research › Search › Judgment

Kerala High Court · body

2018 DIGILAW 1074 (KER)

Lekshmisoorya v. Ditty

2018-12-20

C.K.ABDUL REHIM, T.V.ANILKUMAR

body2018
JUDGMENT : T.V. Anilkumar, J. The petitioner/wife before the Family Court, Kottarakkara, in O.P. (HMA) 728/2015 seeks to quash an order passed by that court on 23.6.2018 dismissing I.A.1290/2018 filed for amending her pleadings in the Original Petition, in this proceeding instituted under Article 227 of the Constitution of India. 2. She filed the said O.P. for divorce, initially on the sole ground of cruelty alleged against her husband. Later, during pendency of the proceedings on an earlier occasion she sought leave to amend the Original Petition on an additional ground under S.13(1)(iii) of the Hindu Marriage Act 1955 alleging that her husband, respondent is incurably of unsound mind. The said amendment was already allowed and incorporated in the pleadings, as early as on 28.6.2017. This is her second round of petition seeking amendment in the O.P., which the respondent/husband very seriously opposed before the lower court. 3. Her allegation against the respondent/husband is that, he has illicit connection with a woman by name Geethanjali and he used to have voluntary sexual intercourse with her. Geethanjali is a divorcee and he pretends before the public that he had lawfully married her, though in fact it is only a pretext for maintaining the illicit relationship. Alleging that, information about the said illicit relationship came to her notice only on 6.5.2018, she sought to implead the said woman as co-respondent in the O.P. and to bring forth the consequential amendments in the pleadings. Under R.11(a) of the Hindu Marriage (Kerala) Rules, 1963, a woman who is alleged to be an adulteress is a necessary party in a proceeding for divorce. On these facts, the petitioner sought to amend the pleadings. But her plea was turned down by the Family Court accepting the objections raised by the respondent on three counts. 4. It was held in the impugned order that the proposed amendment was belated and it ought to have been sought much earlier before the O.P. reached the stage of trial. The second ground for dismissal is that, there are no materials before the court disclosing that the allegation of illicit relationship with the woman is true. The lower court also observed that, there is nothing to show that, the proposed co-respondent was a divorcee as alleged in the amendment application. 5. The second ground for dismissal is that, there are no materials before the court disclosing that the allegation of illicit relationship with the woman is true. The lower court also observed that, there is nothing to show that, the proposed co-respondent was a divorcee as alleged in the amendment application. 5. After hearing both sides and on going through the impugned order and the findings arrived at by the lower court, we find our way difficult to sustain the order on any of the reasons relied on by the lower court. The allegation whether the original respondent has had voluntary sexual intercourse with the proposed co-respondent is a matter required to be proved in evidence only at the stage of trial. Truth or falsity of the allegations in the proposed amendment is not a matter to be enquired in a proceeding under O.VI R.17 of the C.P.C. A party is entitled to plead facts which are true and correct to the best of his knowledge, belief and information. Whether such facts are true or otherwise are to be tested only when the parties join the issue at the stage of trial and not before hand in the concerned proceeding. If the allegation turns out to be false later at the stage of evidence and as vexatiously made with deliberate intention to tarnish the adverse party, the party concerned will be liable to be visited with legal consequences. The contention of the respondent and also the view taken by the lower court that there is no evidence on record for proving that the original respondent had maintained illicit relationship with the proposed co-respondent, cannot be accepted at this stage. It is purely a matter for decision based on evidence, which the learned Family Court has to arrive at after hearing parties and on appreciating all the inputs on record before it. 6. We do not find from the materials on record that the proposed amendment was belated so as to be within the prohibition of the proviso to Order VI Rule 17 of the C.P.C. The petitioner’s case is that she came to know of the alleged illicit relationship only on 6.5.2018 and we find that immediately thereupon she filed the amendment application. When her alleged knowledge was recent, leave to incorporate a ground of divorce under S.13(1)(i) of the Act, cannot be turned down on the ground of her alleged in diligence. Another view taken by the lower court for dismissing the application for amendment is that, the proposed co-respondent was not proved to be a divorcee living with the original respondent as contended by her. There is absolutely no merit in the view taken by the lower court, because for a co-respondent to be added under R.11 (a) of the Hindu Marriage (Kerala) Rules, 1963, she need only to be a woman with whom the respondent spouse had alleged voluntary sexual intercourse. There is no relevance for any distinction being drawn between a divorcee or a non-divorcee in this respect. The lower court has absolutely gone wrong in taking a proper view and in accepting the objections raised by the respondent. We are satisfied that, in order to decide the matter in dispute between the parties, the proposed amendment is essential and leave for the proposed amendment has only to be granted. The impugned order passed by the lower court is therefore illegal and perverse requires interference in this jurisdiction. 7. However, having regard to the entirety of circumstances of the case, we consider this to be a case where I.A.1290/2018 ought to be allowed only on imposition of a reasonable cost on the petitioner which we fix as Rs.3000/- to be paid positively within ten days from today, failing which the aforesaid I.A. will stand dismissed. Therefore it is ordered accordingly. 8. After the proposed amendment being carried out, the lower court will give the respondent sufficient opportunity for rebutting the allegations made against him and decide the issue arising consequent on the new amendment. The lower court will decide the issues before it in accordance with law and evidence, unprejudiced by any observations made by us in granting the proposed amendment through this order. The above O.P.(FC) is disposed of as above.