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2022 DIGILAW 503 (RAJ)

Aamir Khan v. Sultana

2022-02-14

DINESH MEHTA

body2022
ORDER 1. By way of the present writ petition, the petitioner has challenged order dated 13.12.2021 vide which, learned Family Court has allowed respondent's application dated 30.10.2021 filed under Order VI Rule 17 of the Code of Civil Procedure, 1908. 2. Precisely narrated, the facts germane are that the respondent filed a petition on 04.04.2019 and sought dissolution of her marriage with the present petitioner under Section 2 of Dissolution of Muslim Marriages Act, 1939 (hereinafter referred to as 'The Act'). 3. After a reply to the petition had been filed on 30.10.2021, an application under Order VI Rule 17 of the Code, came to be filed by the respondents. 4. The petitioner's husband opposed the amendment and contended that as the reply has been filed and even plaintiff's evidence is over, the stage of amending the plaint has gone and hence, no amendment can be permitted. 5. Learned Family Court allowed the said amendment application vide its order dated 13.12.2021, inter alia, holding that the basis for filing the petition for divorce is desertion and cruelty, hence, the amendment sought in the prayer clause would be essential. 6. Mr. Joshi, learned counsel for the petitioner argued that the amendment allowed by the Trial Court vide its order dated 13.12.2021, is barred by the Proviso of Order VI Rule 17 of the Code. 7. It was also argued that the amendment in question would change the nature of the petition and the same would be beyond the scope of the original petition. 8. Upon examining the record, this Court finds that by way of the subject application dated 30.10.2021, the respondent has simply sought addition of two prayers, which essentially relate to the dissolution of the marriage on the ground of desertion for more than three years and for cruelty. 9. Perusal of the pleadings particularly petition filed under Section 2 of the Act reveals that Para No.3 and 4 contain specific averments regarding desertion and cruelty. 10. Such being the position, the addition of relief clause permitted by the impugned order does not change the nature of the petition as relevant grounds have already been taken in the petition. 11. Perusal of the pleadings particularly petition filed under Section 2 of the Act reveals that Para No.3 and 4 contain specific averments regarding desertion and cruelty. 10. Such being the position, the addition of relief clause permitted by the impugned order does not change the nature of the petition as relevant grounds have already been taken in the petition. 11. In the opinion of this Court, the change in prayer clause is not barred by Proviso to Order VI Rule 17 of the Code of Civil Procedure, inasmuch as, it does not amount to changing the nature of the suit, particularly when the pleadings in this regard have already been incorporated. 12. That apart, strict principles of Code of Civil Procedure in the petition relating to a family disputes to be tried by the Family Court cannot be applied. Because in the Family Courts the matters are not argued by the lawyers and more often than not the parties themselves appear before the Family Court. 13. This Court hardly finds any error and infirmity in the order dated 13.12.2021, for which the writ petition is hereby dismissed. 14. Stay application also stands disposed of accordingly.