Yashoda Sharma @ Yashoda Yadav Vs. Suryabali Yadav - Court Judgment

B.M. Lal, J.

1. Applicant Smt. Yashoda Sharma filed a matrimonial suit against her husband non-applicant Suryabali Yadav under Section 11 of the Hindu Marriage Act, hereinafter called the Act. She also filed an application for amendment of the plaint introducing that house bearing No. MIG-4 Bodabag Colony, Rewa is her property and her husband non-applicant Suryabali Yadav be restrained from interfering with her lawful possession. This application of amendment was rejected by the trial Court by the impugned order dated 4.10.986 holding that the proposed amendment changes the nature of the original suit as framed and filed under Section 11 of the Act.

2. It appears that while passing the order, the trial Court has escaped the attention of the provisions of Section 27 of the Act. The provisions of Section 27 of the Act extends jurisdiction to the Matrimonial Court that in any proceedings under the Hindu Marriage Act, the Court may make such provisions as it deems just and proper with respect to any property presented at or about the time of marriage which may belong to both the husband and the wife. In the instant case, the house in question has been claimed by the wife and hence, the Matrimonial Court is expected to pass a suitable orders. However, without there being specific pleading, no specific order could be passed and thus, by way of an amendment, if the wife wants to introduce a case with regard to the house, the same, considering the facts and circumstances of the case, cannot be refused on the ground that it changes the nature of the original suit. Disposal of property in a matrimonial suit is implicit in view of the provisions of Section 27 of the Act and it cannot be ignored.

3. As far as the amendment in the plaint, the provision of Order 6 Rule 17 C.P.C. itself speaks of that the Court may at any stage of the proceedings allow any party to alter or amend its pleadings in such manner and on such terms as may be just and all such amendments shall be made as may be necessary for purposes of determining the real question in controversy between the parties. Therefore, considering the impact of the provisions of Section 27 of the Act, decision in the matter of house property is also a question in controversy between the parties requiring the Matrimonial Court to adjudicate upon that matter in view of the provisions of Section 27 of the Act. Thus, the Matrimonial Court has committed material irregularity in refusing the proposed amendment introduced by the applicant/wife.

4. Consequently, the order impugned dated 4.10.1988 is set aside and the application of the applicant/wife for amendment is allowed.