Chittatosh Mookerjee, J.
1. On April, 1976 the appellant husband had filed a petition in the Court of the learned District Judge, Alipore under Section 10 of the Hindu Marriage Act praying for a decree for judicial separation on the ground that the respondent wife had treated him with cruelty and that she had deserted him. After the Marriage Laws (Amendment) Act, 1976 was enacted, the appellant husband applied in the trial court for amendment of his petition, inter alia, by substituting in place of the prayer for judicial separation a prayer for decree for dissolution of marriage under Section 13(1) of the Hindu Marriage Act. The trial court had allowed the said prayer for amendment. The respondent wife had contested the said suit, inter alia, denying the allegations of cruelty and desertion made by her husband.
2. The learned Additional District Judge, 7th Court, Alipore dismissed the said suit. Thereafter, the plaintiff husband has filed the present appeal.
3. On 10th April, 1981 the appellant petitioner filed an application in this Court praying that he may be permitted to amend his original petition for divorce by inserting para 14 (a). The respondent wife has opposed the appellant's prayer for amendment of the petition.
4. Mr. Ranjit Kumar Banerjee, learned advocate for the appellant, has made three fold submissions before us. His first submission is, that, for determining and the real questions in controversy between the parties, the appellant, even, at this appellate stage, ought to be allowed to amend his petition. According to Mr. Banerjee, such amendment of the petition if allowed is not likely to cause any prejudice to the respondent wife and she might be sufficiently compensated by awarding costs in her favour. Alternatively, Mr. Banerjee has submitted that in the event this court is unwilling to allow the aforesaid application for amendment of the appellant's petition for divorce, the appellant may be permitted to withdraw his said petition under Section 13 of the Hindu Marriage Act. Lastly, Mr. Banerjee has submitted that in his judgment under appeal the learned Additional District Judge has not recorded necessary findings for determining the issues framed in the case.
5. Before we consider whether at this stage the appellant husband ought to be allowed to amend his petition under Sec. 13, we may proceed to set out the questions which were in controversy between them in the trial court. As previously stated, the plaintiff husband had originally prayed for a decree for judicial separation on the ground of cruelty and desertion and subsequently his said petition was altered into one under Section 13 of the Hindu Marriage Act. The plaintiff husband in his said petition had stated that on 17th Feb., 1973 the marriage between him and the respondent was solemnised according to Hindu rites. His case was that in spite of her protest only once on 17th of- March, 1973 he had cohabited with her. According to the appellant, she had conceived. The appellant further stated that from the day of the Boubhat he had realised that the respondent was mentally irritant by nature and was suffering from complexes. The appellant further stated that in early part of May, 1973 the respondent had undergone abortion on the medical advice of her cousin, Dr. Sudhamoy Seth of Chandarnagar. The appellant also alleged that he had become a victim of physical cruelty and violence as the respondent often inflicted blows and slaps on him. She had also threatened to commit suicide. On 20th May, 1975 he had desired to have sexual intercourse but she had rejected his advances and had begun to shout. She had also inflicted blows on him in the presence of the members of his family. She had allegedly expressed her desire to go to her parents' house. On 23rd June, 1975 the respondent had again picked up quarrel with him, and on 24th June, 1975 she went away to her parents' house with all her ornaments and articles. At the trial the petitioner husband deposed in order to prove his aforesaid allegations against his wife, the respondent herein. He also examined his sister as PW 2, who in her cross-examination denied that she had ever suggested to the respondent to get herself examined by a gynaecologist or that the respondent had shown her a medical certificate that she was physically fit.
6. The learned Additional District Judge found that admittedly the respondent went to Chandarnagar on 24th June, 1975 and since then had been residing there. On 8th April, 1976 the appellant filed the present case. Therefore, undisputedly the petitioner neither averred nor proved that the respondent wife had deserted him for a continuous period of not less than two years immediately preceding the presentation of his petition. In fact, the learned advocate for the appellant did not urge before us the said ground of desertion by the respondent wife. The learned Additional District Judge in his judgment has recorded that the petitioner husband had alleged cruelty on the part of the respondent wife on the following three grounds : (a) abusing and beating the husband, (b) her refusal to have sexual intercourse, and (c) carrying out abortion. In our view, the learned Additional District Judge rightly refused to believe that the plaintiff husband had failed to satisfactorily prove his said allegations of cruelty against his wife. Although he had averred in his petition that the respondent wife had inflicted fist blows on him in the presence of the members of his family and that she did not live with him in the same room in spite of the request of the members of the petitioner's family, the petitioner husband did not examine any member of his family to corroborate the said allegations. The court ought to draw an adverse presumption against the petitioner husband for such non-examination of the members of his family who were described as witnesses to said alleged acts of cruelty and insult by his wife. On the other, hand, even after 24th of June, 1975 when the petitioner was no longer residing, in the petitioner's house, Kunjaswar Paul Chowdhury, father of the petitioner, had written a post-card dated 1st July, 1975 (Ext. 1A) to Gopinath Seth, the father of the respondent. The father of the petitioner had expressed his sorrow for departure of Bouma (the respondent) and stated that especially his wife (the mother of the petitioner) was very anxious. Kunjaswar Babu had further written that they were praying to God for giving happiness and peace to Bouma (the respondent) and also that good sense may prevail upon Sankar (the petitioner). Kunjaswar Babu in the post-script had acknowledged receipt of a letter from the respondent and had promised to write to her. The very contents of the said post-card written by Kunjaswar Paul Chowdhury (Exts. 1A) would disprove the allegation of the petitioner that after abusing and beating him on 24th June, 1975 she had left saying that she would never return. There is also no evidence that the petitioner in fact had tried to bring her back as claimed by him. On the other hand, copies of the two letters written by her to her father-in-law (i.e. the father of the petitioner) (Exts. A2 and A3) indicated that she was very keen to return to her father-in-law's place. She begged forgiveness and requested that arrangements may be made to take her back. We refuse to believe the evidence of the petitioner that in fact originals of these letters were not sent under registered post. Kunjaswar Babu, the father of the petitioner, has not come forward to deny the receipt of the said two letters or to corroborate other allegations of his soft.
7. We also agree with the learned Additional District Judge that the petitioner has failed to prove that after the respondent had conceived she had voluntary abortion. No reason was suggested by the petitioner why the respondent would desire to have abortion. Same was most unnatural and improbable. There was no reliable evidence that the respondent had at all conceived or that she had abortion.
8. Mr. Banerjee, learned advocate for the appellant correctly submitted that 'cruelty' within the meaning of Clause (i) (a) of Sub-section (1) of Section 13 of the Hindu Marriage Act was not confined to causing physical acts of cruelty but included mental cruelty. Persistent failure or inability on the part of a spouse to effectuate sexual intercourse without any reasonable cause may amount to cruelty. But the appellant husband has failed to prove by cogent evidence that there was such refusal or inability on the part of the respondent to have intercourse with him. We have already pointed out that the petitioner husband himself alleged that immediately after the marriage, once he had intercourse with his wife. His case was that thereafter she had persistently refused to have further intercourse with him. On 17th Feb., 1973 the marriage of the petitioner and the respondent took place. It is not believable that after 17th of March, 1973 the respondent started sleeping in a separate bed. None amongst the members of the petitioner husband's family came to corroborate the said allegations of the petitioner. Although in June, 1973 the petitioner and the respondent had visited Nainital and used to sleep in the same room, it is utterly improbable that they did not have any intercourse. We have already stated that there is also no corroboration of the petitioner's case regarding the incidents which happened before the respondent went away to her father's house on 24th June, 1975. There is much more probability in the case of the respondent that on 24th June, 1975 she did not go back alone to her father's house at Chandarnagore but she was escorted either by the petitioner or some other member of his family. We have already pointed out that the father of the petitioner in his post-card (Ext. Al) addressed to the respondent wife did not make any accusation against the respondent. On the other hand, he had expressed sorrow for leaving of his Bouma (the respondent). The trial Court has rightly found that the petitioner has failed to prove that the respondent wife had all along refused to have sexual intercourse with him. Accordingly, we hold that the court below rightly answered the issues framed by it in favour of the respondent and had correctly dismissed the appellant's petition under Section 13(1) of the Hindu Marriage Act.
9. In our view, the appellant husband has not made out any case for allowing him to belatedly amend his pctilion by inserting therein allegations of physical deformity or defect of sexual organs of the respondent wife. All proceedings under the Hindu Marriage Act, 1955 are regulated as far as may be by the Civil Procedure Code, 1908 (vide Section 21 of the Hindu Marriage Act). It is true that the Court under Order 6, Rule 17 of the Code has a wide discretion to grant, amendments of pleadings in order to do complete justice between the parties and also to shorten the course of litigation. Such discretion of the court under Order 6, Rule 17 is judicially exercised. Amendments of the pleadings at any stage may be allowed which are necessary for determining the questions in controvesy between the parties. Further, for the purpose of granting or refusing prayers for amendment of pleadings made by a party, the court is required to consider whether or not, if such amendment is allowed, same would cause any injustice to the other party which cannot be sufficiently compensated by awarding costs. Mr. Banerjee, learned advocate for the appellant, has drawn our attention lc pages 367 to 374 of Rayden on Divorce (12th Edition). The learned author has, inter alia, discussed the methods to be adopted for adding charges after a matrimonial petition has been filed. Mr. Banerjee has also placed before us the decision of the Court of Appeal in Nelson v. Nelson & Slinger, (1958) 2 All ER 744: (1958) 1 WLR 894, which has been mentioned at page 369 of Rayden on Divorce (12th Edition). The Court of Appeal had, inter alia, held that in England there was at present no practice in Divorce Division which would prevent the court from applying ordinary rules as to amendment of pleadings which were made applicable generally speaking to matrimonial cause by Rule 82 of the Matrimonial Causes Rules, 1957. It may be similarly noted that under Section 21 of the Hindu Marriage Act the provisions of. the Civil Procedure Code as far as may have been made applicable to proceedings under the said Act. The Court of Appeal in Nelson v. Nelson & Slinger (supra), also recognised that in the exercise of its discretion the court has jurisdiction to allow an amendment of a petition grounded on cruelty by adding further charges of cruelty if it was thought right and proper so to do in the interest of justice.
10. But, in our view, in the interest of justice the amendment prayed for by the appellant ought not to be granted. The parties to this case have already adduced evidence in full before the trial court which has pronounced its judgment. By praying for amendment of his petition, the appellant is now attempting to adduce evidence about the alleged physical deformity or defect of the respondent wife. The appellant has not otherwise made out any case for adducing such additional evidence. It is settied law that when the parties had already got full opportunities to adduce evidence, the court of first instance had given ample opportunity to the parties to adduce their evidence, an unsuccessful party cannot be permitted to adduce further evidence to the appellate court to strengthen his case which had not been accepted by the trial court. In the trial court the petitioner founded his case of cruelty against the respondent on the ground that she had refused to have sexual intercourse with him and that on several occasions she had assaulted him. We have already concurred with the trial court's findings that both the said allegations had not been established. So long as the finding of the trial court stands that she did not refuse to have sexual intercourse with her husband, the appellant, it is no longer necessary to consider whether her alleged refusal was due to congenital deformity or defect of her sexual organs or because of other reasons. In bther words, by praying for inserting para. 14 (a) in his petition the petitioner husband is really en-deavouring to get rid of the said adverse finding that there had been no persistent refusal by her to have sexual intercourse with the appellant. The petitioner had never alleged in the trial court that sexual intercourse with the respondent, was either impossible or most painful. Although he claimed that after marriage and before 17th March, 1973 at least on one occasion the parties had intercourse, he did not further allege that the same was extremely painful to either of the parties. Therefore, for the purpose of adjudicating the points in controversy it is not at all necessary to determine whether she had any congenital deformity or defect of her sexual organs.
11. Although the petitioner husband neither averred nor proved any such congenital deformity or defect of the respondent, in her written statement, the respondent had pleaded that after 24th June, 1975 she went to the house of the petitioner's sister at Naihati and she was told that the charge against her was that she was incompetent to cohabit and the petitioner husband had asked the respondent to get herself medically examined. She had further claimed that she got herself medically examined by a gynaecologist, who gave her a certificate. The respondent in her examination-in-chief had also mentioned about the said fact of medical examination and had stated about the certificate granted by a doctor who examined her. The said certificate was marked 'X' for identification. Presumably, because the doctor who gave the certificate was not examined, the certificate was not marked as an exhibit. The petitioner did not cross-examine her with reference to her said claim of medical examination. No suggestion was given to her that she suffered from any physical deformity or defect. When, the petitioner himself in his evidence did not state that the respondent suffered from any such deformity or defect, it was not necessary for the respondent to cross-examine him with reference to the said question of medical examination. The sister of the petitioner P.W. 2, denied in her cross-examination that she had ever suggested that she should be medically examined. She also denied that a medical certificate was shown to her. Thus, in spite of the challenge thrown by the respondent that she was medically fit to have sexual intercourse, the petitioner husband did not attempt to prove the contrary. We find no reason why the petitioner at this belated stage should be allowed to amend his petition in order to make a new case about the alleged physical deformity or defect of the respondent which was not even consistent with his case in the trial court.
12. Mr. Banerjee, learned advocate for the appellant, tried to submit before us that the said fact of her physical deformity or defect came to be known to the petitioner from the medical certificate filed by the respondent in the trial court. At this stage, we are considering whether the amendment of the petitidn under Section 13 ought to be allowed, we cannot enter into the truth or falsehood of the allegations now sought to be introduced by the appellant. The contents of the certificate marked 'X' for identification were never proved. Therefore, the appellant is not entitled to make any submission about the fact of the said medical certificate. It would be most unjust to allow the petitioner to amend his petition so that the respondent may be required to submit to a medical examination and the appellant can substantiate his new case of respondent's physical deformity or defect. Such amendment, therefore, is not only unnecessary for determining the questions in controversy but also if the amendment is granted the same would cause serious prejudice and injustice to the respondent. For the foregoing reasons, we reject the application for amendment made by the appellant.
13. The appellant has not made out any case for granting him leave to withdraw his petition under Section 13 of the Hindu Marriage Act. He has not alleged that there is any formal defect in his petition or that there was any other sufficient ground for allowing the petitioner to institute a fresh petition for the subject matter of his claim. The trial court has already determined the issues. Therefore, by obtaining withdrawal of his petition the appellant cannot be allowed to get rid of the adverse findings upon the issues made by the court below.
14. For the foregoing reasons, we dismiss this appeal. We also reject the application for amendment of the petition filed by the appellant. There will be no order as to costs.
R.K. Sharma, J.
15. I agree.