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4.
HIGH COURT OF DELHI
CM(M) 1450/2009 & CM Nos.18018-20/2009
GIREESH GUPTA Petitioner
Through: Mr.Gyanprakash and Mr.Neeraj Pal, Advocates.
HIGH COURT OF DELHI
CM(M) 1450/2009 & CM Nos.18018-20/2009
GIREESH GUPTA Petitioner
Through: Mr.Gyanprakash and Mr.Neeraj Pal, Advocates.
VERSUS
/ NITU AGGARWAL Respondent
Through: None.
Through: None.
CORAM:
HON'BLE MS. JUSTICE ARUNA SURESH
11.12.2009 Under challenge in this petition is the order of the Trial
Court dated 4th September, 2009, whereby the learned Judge was pleased to dismiss the application of the petitioner under Order 6
Rule 17 of the Code of Civil Procedure (hereinafter referred to as
'CPC') seeking amendment in the petition filed under Section 10 of the Hindu Marriage Act (hereinafter referred to as the 'Act') for a decree of judicial separation and to convert the same into a petition for divorce under Section 13(1)(ia) of the Act.
Petitioner has filed a petition under Section 10 of the
CM(M) 145012009 2009:DHC:8643 In Act seeking decree of judicial separation against the respondent.
He has sought amendment on the ground that during the pendency of the said petition, wherein issues have already been framed and the case is at the stage of recording of evidence of the petitioner, a criminal complaint has been filed by the respondent under Sections 498-A14061420/5061120-B of the
Indian Penal Code against the petitioner and his other family members, on the basis of the said complaint an FIR has been registered. This has resulted into further cause of separation between the parties, as relationship between the two has deteriorated and in view of the said registration of the criminal complaint, he wants to convert the petition from Section 10 to one under Section 13(1) Oa) of the Act, seeking decree for divorce on the ground of cruelty.
Undisputedly, the complaint under Sections 498-
A/406/420/ 506/120-B of the Indian Penal Code, was already filed by the respondent when petitioner filed the petition under
Section 10 of the Act. Since the parties could not settle their disputes before the Crime Against Women Cell, an FIR has been
CM(M) 145012009 Page 2of4 registered.
Now, by way of amendment not only the petitioner wants to convert the title of the petition and the nature of relief claimed by him, but virtually has sought amendment of the entire petition. Absolutely new allegations have been raised in the proposed amended plaint, which are not before the Trial Court in the petition under Section 10 of the Act. By way of amendment, petitioner cannot be allowed to raise absolutely a new case or new pleas and convert the same from Section 10 to one under
Section 13(1)(ia) of the Act.
The Trial Court, while dismissing the application observed that no blanket permission could be granted to any party to amend or modify the pleadings under Order 6 Rule 17
CPC, without his disclosing the specific contentions, modifications or allegations. The Court was also of the opinion that if the application for amendment was allowed, petition under Section
10 would be converted into a petition under Section 13(1)(ia) of the Act, with main relief of divorce, which would cause serious prejudice to the respondent, as it would amount to changing the
CM(M) 145012009 Page of 4 V entire nature of the litigation.
I find no infirmity or illegality in the impugned order of the Trial Court. It is pertinent to mention here that under Section
10 sub-Section (2) of the Act, a party has the authority to move the Court to retrieve the order of judicial separation at any stage, subsequent to the final disposal of the petition. Not only this, even the Court has the power to retrieve its own order, if the
As facts and circumstances are such that the Court is of the view that no judicial separation was required. In a petition for divorce under Section 13(1)(ia) of the Act, no such remedy is available to the respondent. Hence, I am of the view that if the amendment sought for is allowed, it would change the entire nature of the case, which cannot be permitted.
Hence, I find no merits in this petition and the same is dismissed in limini. Petitioner is at liberty to move a fresh petition for divorce on any of the ground including the ground of cruelty under Section 13(1(ia) of the Act.
ARUNA SURESH, J.
DECEMBER 11, 2009 sb CM(M) 145012009
11.12.2009 Under challenge in this petition is the order of the Trial
Court dated 4th September, 2009, whereby the learned Judge was pleased to dismiss the application of the petitioner under Order 6
Rule 17 of the Code of Civil Procedure (hereinafter referred to as
'CPC') seeking amendment in the petition filed under Section 10 of the Hindu Marriage Act (hereinafter referred to as the 'Act') for a decree of judicial separation and to convert the same into a petition for divorce under Section 13(1)(ia) of the Act.
Petitioner has filed a petition under Section 10 of the
CM(M) 145012009 2009:DHC:8643 In Act seeking decree of judicial separation against the respondent.
He has sought amendment on the ground that during the pendency of the said petition, wherein issues have already been framed and the case is at the stage of recording of evidence of the petitioner, a criminal complaint has been filed by the respondent under Sections 498-A14061420/5061120-B of the
Indian Penal Code against the petitioner and his other family members, on the basis of the said complaint an FIR has been registered. This has resulted into further cause of separation between the parties, as relationship between the two has deteriorated and in view of the said registration of the criminal complaint, he wants to convert the petition from Section 10 to one under Section 13(1) Oa) of the Act, seeking decree for divorce on the ground of cruelty.
Undisputedly, the complaint under Sections 498-
A/406/420/ 506/120-B of the Indian Penal Code, was already filed by the respondent when petitioner filed the petition under
Section 10 of the Act. Since the parties could not settle their disputes before the Crime Against Women Cell, an FIR has been
CM(M) 145012009 Page 2of4 registered.
Now, by way of amendment not only the petitioner wants to convert the title of the petition and the nature of relief claimed by him, but virtually has sought amendment of the entire petition. Absolutely new allegations have been raised in the proposed amended plaint, which are not before the Trial Court in the petition under Section 10 of the Act. By way of amendment, petitioner cannot be allowed to raise absolutely a new case or new pleas and convert the same from Section 10 to one under
Section 13(1)(ia) of the Act.
The Trial Court, while dismissing the application observed that no blanket permission could be granted to any party to amend or modify the pleadings under Order 6 Rule 17
CPC, without his disclosing the specific contentions, modifications or allegations. The Court was also of the opinion that if the application for amendment was allowed, petition under Section
10 would be converted into a petition under Section 13(1)(ia) of the Act, with main relief of divorce, which would cause serious prejudice to the respondent, as it would amount to changing the
CM(M) 145012009 Page of 4 V entire nature of the litigation.
I find no infirmity or illegality in the impugned order of the Trial Court. It is pertinent to mention here that under Section
10 sub-Section (2) of the Act, a party has the authority to move the Court to retrieve the order of judicial separation at any stage, subsequent to the final disposal of the petition. Not only this, even the Court has the power to retrieve its own order, if the
As facts and circumstances are such that the Court is of the view that no judicial separation was required. In a petition for divorce under Section 13(1)(ia) of the Act, no such remedy is available to the respondent. Hence, I am of the view that if the amendment sought for is allowed, it would change the entire nature of the case, which cannot be permitted.
Hence, I find no merits in this petition and the same is dismissed in limini. Petitioner is at liberty to move a fresh petition for divorce on any of the ground including the ground of cruelty under Section 13(1(ia) of the Act.
ARUNA SURESH, J.
DECEMBER 11, 2009 sb CM(M) 145012009
JUDGMENT