Alka Khemka Vs. Kishan Lakkar - Court Judgment

S.P. Talukdar, J.

1. The present application under Article 227 of the Constitution is directed against the Order No. 16 dated 12th June, 2006 passed by the learned Presiding Judge, Family Court, Calcutta in Matrimonial Suit No. 230 of 2004.

2. After hearing learned Counsel for both parties and on perusal of relevant materials it appears that an application under Order 6 Rule 17 read with Section 151 of the Code of Civil Procedure was filed before the learned Court on behalf of the petitioner. The opposite party/respondent filed written objection against such prayer for amendment on the ground that the proposed amendment, if allowed, would change the nature, scope and object of the suit. The learned Court by the order dated 12.6.2006 rejected the said application for amendment.

3. Mr. Sen, as learned Counsel for the petitioner, submitted that the learned Judge, Family Court, failed to appreciate the matter in its proper perspective. It was submitted that at the time of filing of the matrimonial suit, certain vital aspects escaped the attention which naturally required to be taken care of. The petitioner was advised to seek a declaration that her purported marriage with the opposite party was null and void ab initio for non-compliance with the mandatory statutory procedures in relation to a marriage under the Hindu Marriage Act. The petitioner was subsequently advised to include necessary pleadings and incorporate an alternative prayer of divorce under Section 13 of the Hindu Marriage Act.

4. Mr. Sen emphatically submitted that such amendment does not seek to change the nature, scope and object of the suit. Rather, it is necessary for effective adjudication of the controversy between the parties and in order to avoid multiplicity of proceeding.

5. It was contended on behalf of the petitioner that the learned Trial Court failed to appreciate that law permits amendment even where a contradictory stand is sought to be introduced. It was then submitted that refusal of the prayer for amendment may only lead to multiplicity of proceedings and this is to be avoided as far as possible and practicable.

6. On the other hand, Mr. Banerjee appearing as learned Counsel for the opposite party raised strong objection to the prayer for such amendment. He submitted that having regard to the nature of the suit as framed and the reliefs prayed for, it would be unjust to allow the said amendment. It was the categorical assertion of Mr. Banerjee appearing as learned Counsel for the opposite party/husband that the order under challenge does not deserve any manner of interference.

7. Before proceeding further, it is, perhaps, necessary to mention that no grievance has been ventilated as against rejection of the petition whereby the present petitioner prayed for passing of summary judgment. It is also worth mentioning that the present petitioner has already been allowed to be represented by learned Counsel in connection with the case under reference and as such this aspect also does not require any further discussion.

8. The present petitioner approached the learned Judge of Family Court with a prayer for declaration that there had been no marriage between the petitioner and the respondent as well as for cancellation of the marriage certificate registered under the Hindu Marriage Act. In the said case, it was the specific stand of the present petitioner that on 28th November, 2001, the opposite party put psychological pressure upon her thereby compelling her to sign on a printed form for registration of marriage. It was alleged that there had been false averment to the effect that the marriage between the petitioner and the respondent was held on that very date at the residence of the respondent though there had been no such marriage at all. It was also alleged that the respondent assured her that such a document would not be used unless a social marriage is performed with the consent of the petitioner and her family members.

9. Since, on enquiry, certain peculiar facts about the opposite party came to the knowledge of the petitioner, there could be no question of any marriage between the two. It was only at a subsequent stage that the present petitioner could come to know that the papers which she was compelled to sign on 28.11.2001, were in connection with the registration of her marriage with the opposite party on 19.12.2001. The petitioner, thus, sought for a declaration that the so-called marriage certificate is, in effect, a fake and false document which was prepared at the instance of the present opposite party on the basis of false particulars. The initial prayer for declaration that the alleged marriage between the parties was null and void, was sought to be amended by introducing the prayer for a decree of divorce.

10. Mr. Banerjee, as learned Counsel for the opposite party while supporting the order under challenge submitted that a party cannot be allowed to change any cause of action by way of amendment. Inviting attention of the Court to the stand taken by the present petitioner in the original plaint that there had been no marriage between the parties and the certificate of marriage was prepared by exercising undue influence upon the petitioner it was submitted that the same had since been sought to be shifted by introducing the alternative prayer for a decree of divorce. He emphatically contended that proposed amendment, if allowed, would change the case of action.

11. Mr. Banerjee, in this context, referred to the decision in the case of State of A.P. and Ors. v. Pioneer Builders A.P. reported in 2006 (8) Supreme 3.

12. On the other hand, Mr. Sen, as learned Counsel for the petitioner submitted that even inconsistent pleadings can be introduced by way of amendment, if it is found to be necessary for effective adjudication of the dispute between the parties. Referring to the decision in the case of Punjab National Bank v. Indian Bank as reported in : [2003]3SCR836 , he submitted that there had been no attempt to change the nature, scope or object of the suit by way of amendment.

13. Referring to the decision in the case of Pankaja and Anr. v. Yellappa (D) by L.Rs and Ors. reported in : AIR2004SC4102 , it was submitted by Mr. Sen that while considering the prayer for amendment, it is necessary for the learned Court to see, if such amendment subserves cause of justice and avoids further litigation.

14. Mr. Sen then submitted that the Court should allow all amendment that may be necessary for determining the real question in controversy between the parties, provided it does not cause injustice or prejudice to the other side. In the case of Rajesh Kumar Aggarieal and Ors. v. K.K. Modi and Ors. reported in : AIR2006SC1647 , the Apex Court held that the real controversy test is the basic or cardinal test and it is the primary duty of the Court to decide whether an amendment is necessary to decide the real dispute between the parties. This, however, does not lead the Court to go into correctness or falsity of the case in the amendment, nor record a finding on the merits of amendment at the stage of considering the prayer for amendment. In the said case, it was further held that the Court should also take notice of subsequent events in order to shorten the litigation, to preserve and safeguard the rights of both parties and to subserve the ends of justice.

15. Relying upon the decision in the case of Sampath Kumar v. Ayyakannu and Anr. reported in : [2002]SUPP2SCR397 , it was submitted that mere delay in making an application for amendment cannot be a ground for refusing such prayer. It is true that no strait-jacket formula in this regard can be laid down, but it seems to be the settled position of law that the Court may, at any stage of the proceedings, allow either party to alter or amend pleadings in such a manner and on such terms as may be just and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties. In the case of State of A.P. and Ors. (supra), it was held that the power to allow the amendment is wide and can be exercised at any stage of the proceedings in the interest of justice. The Apex Court quoted the passage from the decision of the Privy Council in the case of Ma Shoe Mya v. Maung Mo Hnaung AIR 1922 Privy Council 249, which may be reproduced as follows:

All rules of Court are nothing but provisions intended to secure the proper administration of justice, and it is, therefore, essential that they should be made to serve and be subordinate to that purpose, so that full powers of amendment must be enjoyed and should always be liberally exercised, but nonetheless no power has yet been given to enable one distinct cause of action to be substituted for another, nor to change, by means of amendment, the subject-matter of the suit.

16. Mr. Banerjee, as learned Counsel for the opposite party invited attention of the Court to the claim of the present petitioner in the original application whereby a declaration that the purported marriage between the parties is a nullity, was sought for. It was submitted that it is only by way of introducing the proposed paragraphs 17A and 17B that the petitioner sought to introduce in the plaint that the purported marriage had not been solemnized in accordance with the customary rites and ceremonies of either party thereto. Attempt has also been made to introduce further averments that the purported marriage is not complete and not binding in accordance with the procedures and principles enunciated in Section 7 of the Hindu Marriage Act. But having regard to the stand of the present petitioner in the original application, I do not find any scope for any grievance in this regard.

17. Question that next arises is how far the proposed amendment by which the petitioner sought to introduce the alternative prayer for a decree of divorce by dissolution of marriage, can be entertained.

18. It is true that Section 8 of the Hindu Marriage Act deals with registration of Hindu marriage and question of such valid registration can only arise when the ceremonies for a Hindu marriage, as referred in Section 7 of the Hindu Marriage Act, 1955 are duly performed.

19. It was further contended on behalf of the opposite party that no petition for annulling a marriage on the ground that the consent of the petitioner for such marriage was obtained by force, shall be entertained if the petition is presented more than one year after the force had ceased to operate or, as the case may be, the fraud had been discovered.

20. Referring to such time period, it was submitted on behalf of the opposite party that by introduction of an alternative prayer for a decree of divorce, an attempt has been made to change or alter the cause of action which in law is not permissible.

21. It is well-settled principles of law that amendment should ordinarily be allowed for the purpose of determining the real questions in controversy between the parties. It cannot be denied that the power to allow amendment is wide and can be exercised at any stage of the proceedings in the interest of justice. The Court is also required to adopt liberal and not a hyper-technical approach particularly where the other side can be compensated with cost. Amendments are generally allowed in order to avoid multiplicity of proceeding. But certainly one distinct cause of action cannot be substituted for another nor the subject-matter of the suit can be changed by means of an amendment.

22. Having regard to the nature of the case and the prayer for amendment as made in the application under Order 6 Rule 17 of the Civil Procedure Code, it does not seem that the proposed amendment by any stretch of imagination attempts to change the nature, scope and object of the suit. By introducing an alternative prayer for divorce, the petitioner has only sought to avoid multiplicity of proceeding.

23. Though grievance was raised regarding the point of limitation, I do not find any rational basis for the same. Even after such amendment is allowed, it would be open for the party to raise the point of limitation and the Court will certainly be required to adjudicate upon the same.

24. Considering all these aspects, I think that the learned Judge, Family Court was not justified in rejecting the prayer for amendment and as such, the said order dated 12.6.2006 be set aside. The application under Order 6 Rule 17 read with Section 151 of the Civil Procedure Code filed by the present petitioner before the learned Family Court be allowed and the learned Court is hereby directed to give time and opportunity to the present opposite party to file additional written statement and thereafter to proceed with the hearing of the suit in accordance with law.

25. This disposes of CO. No. 4341 of 2006. No order as to costs. Xerox certified copy, if applied for, be supplied to the parties as expeditiously as possible.