Dyutimala Chatterjee nee Bagchi v. Subhrajit Chatterjee
2018-09-07
ASHIS KUMAR CHAKRABORTY
body2018
DigiLaw.ai
JUDGMENT : 1. This revisional application, at the instance of the respondent wife in the matrimonial suit is directed against the order dated March 31, 2017 passed by the learned Additional District Judge, 2nd Court, Howrah in Matrimonial Suit No. 3893 of 2014. By the impugned order, the learned Court below allowed the prayer of the plaintiff husband, the opposite party herein to amend the plaint filed in the matrimonial suit seeking a decree for dissolution of marriage. 2. In the amendment application, the plaintiff made out a case that at the time of preparation of the suit for peremptory hearing in the month of September, 2016 he got two self hand written declarations of the respondent wife which are required to be produced before the learned Court for effective adjudication of the suit. The present petitioner, as the respondent wife in the matrimonial suit contested the said amendment application. In the written objection, she asserted not to have executed any declaration by herself as alleged by the plaintiff. 3. The learned Court below held that the plaintiff husband has filed the suit for dissolution of marriage on the ground of mental cruelty being committed upon him by the wife that the proposed amendment appears to be only elaboration of facts of mental cruelty perpetrated upon the plaintiff by his wife. With these findings, the learned Court below passed the impugned order allowing the amendment application of the plaintiff husband. 4. Assailing the impugned order, Mr. Probal Mukherjee, learned Senior Advocate, appearing for the petitioner contended that although the opposite party sought for amendment of his plaint on the ground of discovery of two self hand written declarations of the present petitioner but he did not disclose the said purported documents in the amendment application nor did the learned Court below refer to the said purported documents while passing the impugned order. It was urged that in the present case the learned Court below has passed the impugned order by failing to exercise judicial discretion and as such, the same is liable to be set aside. 5. However, Mr. Partha Pratim Roy, learned advocate appearing for the opposite party husband, submitted that the impugned order passed by the learned Court below does not suffer from any infirmity calling for any interference by this Court. 6.
5. However, Mr. Partha Pratim Roy, learned advocate appearing for the opposite party husband, submitted that the impugned order passed by the learned Court below does not suffer from any infirmity calling for any interference by this Court. 6. I have considered the materials on record, as well as the arguments advanced by the learned advocates appearing for the respective parties. In the present case, the amendment application filed by the opposite party was based on discovery of two written declarations by the present petitioner. However, in the amendment application the opposite party did not disclose the said self-written declarations allegedly executed by the wife. Even before this Court it is not the case of the opposite party that the said purported self-written declarations by the present petitioner were produced before the learned Court below. Further, it was not even the case of the opposite party in the amendment application that the facts sought to be incorporated by him in the plaint by way of amendment are necessary for elaboration of the ground for divorce urged by him in the suit. Therefore, the learned Court below committed a patent illegality in passing the impugned order with the finding that the amendment as prayed for by the plaintiff is only for elaboration of the facts of mental cruelty perpetuated by the wife on the husband. 7. For the reasons as aforesaid, I find that the impugned order passed by the learned Court below is vitiated by patent illegality. Accordingly, the order dated March 31, 2017 passed by the learned Additional District Judge, 2nd Court, Howrah in Matrimonial Suit No. 3893 of 2014 is set aside. 8. There shall, however, be no order as to costs. 9. Certified website copy of the order, if applied for, be urgently made available to the parties, subject to compliance with all requisite formalities.