Meenal Mohan Garudi @ Baby Morto Porab v. Mohan Eknath Garudi @ Dessai
2022-11-07
VALMIKI SA MENEZES
body2022
DigiLaw.ai
JUDGMENT 1. This petition under Article 227 takes exception to order dated 03.10.2022 passed by the District Court, Mapusa in Regular Civil Appeal No.53/201, whereby the learned District Judge has allowed an application for amending the plaint in Matrimonial Petition No.25/2006/A, which was filed before the Civil Judge Senior Division at Mapusa at the behest of the respondent (husband), who is the original plaintiff. A further challenge is thrown in this petition to an order dated 17.08.2022 passed by the learned District Judge whilst recording evidence of the petitioner/original defendant/respondent (wife) in the suit; the order directs the petitioner, who was at the relevant time in the witness box to answer a question put by the respondent to the witness, and objected to by the petitioner. 2. Short facts that lead to the filing of this petition are as under: (a) The respondent, who is the original petitioner in Matrimonial Petition No.25/2006 instituted a suit for divorce against the petitioner, his wife, claiming that the petitioner had without any reason left the conjugal home in August 1997, and after returning back, she abandoned the conjugal home permanently on 26.04.2001 not returning thereafter. On the grounds, inter alia, of desertion, a plaint came to be filed on 18.05.2006 seeking divorce under Article 4(1), (4) and (5) of the Laws of Divorce applicable to the State of Goa. After written statement was filed by the petitioner/original respondent/wife, issues were struck, parties led evidence and the Civil Court dismissed the suit holding that no grounds have been made out by the plaintiff in his evidence. (b) In an appeal filed by the original plaintiff/husband bearing Regular Civil Appeal No.53/2015, filed before the District Court at Mapusa, the respondent moved an application for amendment of the plaint to incorporate additional facts and subsequent events, claiming that the petitioner was defacto separated for more than 10 years since 26.04.2001, and such separation was freely consented by the parties; the application for amendment of the plaint was opposed by the petitioner herein and the same came to be allowed by the impugned order dated 03.10.2022 in this petition.
(c) Prior to the amendment application being filed, the petitioner sought to produce certain documents before the appellate Court, they being the record of deposition of the respondent/husband in the proceedings filed by the petitioner under Section 125 of the Code of Criminal Procedure, 1973 before the Judicial Magistrate First Class at Panaji in a criminal case bearing Maintenance Application No.2/2010, 'C' Court. The application for production of documents was dismissed by the District Court by order dated 26.02.2020. The petitioner challenged the order dated 26.02.2020 before this Court in Writ Petition No.218/2021 and the said petition was allowed by judgment dated 20.09.2021. By the said judgment, this Court set aside the order dated 26.02.2020 of the District Judge, Mapusa, allowing the petitioner to produce the said documents before the District Court. In terms of the order dated 20.09.2021, the District Judge allowed the petitioner to produce the documents by leading evidence and it is during the course of recording of this evidence that order dated 17.08.2022 came to be passed overruling the petitioner's objections to a question put in cross-examination directing the petitioner's witness to answer the same. This order dated 17.08.2022 is also challenged in this petition. 3. I have heard learned Advocate Ms. Prithvi Bandekar for the petitioner; I have perused the records of the proceedings before the District Court in Regular Civil Appeal No.53/2015. 4. The application for amendment of the plaint seeks to incorporate additional facts which constitute a cause of action which has arisen after matrimonial suit was instituted and which have arisen during the course of the appeal. The nature of the facts sought to be incorporated by way of amendment are basically to allege that the petitioner/wife has been defacto separated from the husband from the date specified in original plaint, that is 26.04.2001, as having of her own she left the matrimonial home. By the amendment, the original plaintiff seeks to raise an additional ground for divorce under clause 10 of Article 4 of the Laws of Divorce, that is, to say the ground of defacto separation of the parties for a period of 10 years which was freely consented by both the parties. 5. The appellate Court, in the impugned order, has considered the principles on which an appellate Court would grant an amendment to the plaint.
5. The appellate Court, in the impugned order, has considered the principles on which an appellate Court would grant an amendment to the plaint. The appellate Court has proceeded on a correct legal principle that an amendment to the plaint of an event that gave a cause of action subsequent to the passing of the decree by the trial Court could be granted on the basis that such fact to be incorporated in the amendment would avoid the filing of a fresh suit on that cause of action, and would avoid multiplicity of litigation between the parties. The trial Court has made reference to the observations of this Court in the case of Smt. Sheetal Prakash Pai V/s. Dr. Prakash Ramnath Pai in Second Appeal No.73 of 2000 decided on 26.11.2010, wherein this Court has observed at paras 19 & 20 as under: ?'Article 6 of the Law of Divorce requires the appellant to make precise allegation giving rights to any of the grounds listed under Article 4 therein. Nowhere in the said Article there is any prohibition on the amendment of the plaint as resorted to by the appellant for incorporating the precise allegations in respect of an additional ground of divorce in the plaint. This can be seen from the text of Article 6. There is a duty cast on the appellant to allege precisely any one of the facts under Article 4 as lawful grounds for divorce in the plaint of the suit instituted for divorce. However, it may so happen that after the institution of the suit for divorce there would be such developments as to furnish any other ground under Article 4 which was not previously pleaded in the plaint.'' 6.
However, it may so happen that after the institution of the suit for divorce there would be such developments as to furnish any other ground under Article 4 which was not previously pleaded in the plaint.'' 6. The District Court has made further reference that judgment of this Court rendered in Alvito Laurento Fernandes V/s. Maria Elsa de Oliveira Gomes in First Appeal No.66 of 1997 decided on 20.10.2000, wherein this Court has allowed a similar amendment, permitted the original defendant to file additional written statement, framed an additional issue to the effect as to whether a separation of the parties to the suit for 10 years was freely consented by the parties, sent the matter back to the trial Court for evidence to be led by the parties on the said issue and on receipt of such evidence, has proceeded to decide the appeal after considering the additional evidence led on the basis of the additional ground under Article 4(10) of the Law of Divorce. 7. I find no infirmity in the procedure followed by the District Court in granting of the amendment to the plaint. There is no procedural irregularity, much less any infraction of a principle of law which will require this Court's interference in its writ jurisdiction under Article 227. There being no error committed by the appellate Court whilst passing the impugned order dated 03.10.2022, granting the amendment no cause has been shown for any interference. 8. The order dated 17.08.2022 disallowing the objection of the petitioner to a question put in cross-examination, in no way denies the petitioner an opportunity to argue on the relevance, admissibility or any other point that she may wish to argue on the basis of the Evidence Act, 1872, at the stage of final arguments of the appeal. It does not call for my interference with such an order at this stage, as all that the impugned order does is to record an answer from the witness, which may or may not be considered relevant to the issue, or of such veracity, that the Court may think it important to consider at the stage of final arguments of the matter. There is therefore no cause of interference with the order dated 17.08.2022 recorded in the evidence sheet of the petitioner. 9.
There is therefore no cause of interference with the order dated 17.08.2022 recorded in the evidence sheet of the petitioner. 9. Before recording my final order herein it may be necessary to observe that all questions on the consequence of the amendment would be open before the appellate Court. The judgments of this Court in Alvito Laurento Fernandes (supra) and Smt. Sheetal Prakash Pai (supra) lay down a clear procedure to be followed by an appellate Court after grant of amendment to substantiate a ground in Article 4(10) of the Laws of Divorce seeking separation of the parties which was freely consented by them. The judgments clearly lay down that after the amendment to the plaint to incorporate such an additional ground is allowed, the original defendant would be given an opportunity to file an additional written statement pursuant to which the District Court may frame the issue as to whether the original plaintiff proves that the separation of the parties to the suit for 10 years was freely consented by the parties. After framing such issue the matter would be referred to the trial Court for recording the evidence of both parties restricted to the issue as framed, and a report of such evidence along with a record would be sent back to the concerned District Court for passing a final judgment in the appeal, including the additional grounds of divorce after hearing the parties. 10. With the above observations, the present petition is dismissed. No costs. All concerned to act on the basis of authenticated copy of this order.