HIGH COURT OF JUDICATURE AT ALLAHABAD
Court No. 01
Civil Misc. Writ Petition No. 42891 of 2008
Smt. Arti Pandey
Vs.
Principal Judge, Family
Court, Allahabad
Hon'ble V.K.Shukla,J
Present writ petition under Article 226/227 of the Constitution of India (Smt. Arti Pandey, Versus Principal Judge, Family Court, Allahabad and others) has been filed for quashing of the order dated 8.8.2008 passed by the Principal Judge, Family Court, Allahabad in Matrimonial Petition No. 688 of 2005 (Vishnu Kant Tiwari Versus Smt. Arti Pandey) wherein amendment application Paper No. 27K has been allowed and suit filed under Section 9 of the Hindu Marriage Act has been directed to be converted into under Section 13 of Hindu Marriage Act for divorce.
Brief background of the case is that Vishnu Kant Tiwari filed proceeding under Section 9 of the Hindu Marriage Act before the Principal Judge, Family Court, Allahabad being Matrimonial Petition No. 688 of 2005 and therein prayer made was that his wife in-spite of repeated call given, has not joined in respect of discharge of her matrimonial obligation. Said suit was contested by Smt. Arti Pandey by filing written statement and it was indicated therein that totally false statement of fact has been mentioned and further she has been harassed and victimised. Thereafter, application was moved under Order 6 Rule 17 of C.P.C. for adding paragraph No. 8A, 8B, 8C, 8D, 8E, 8F and 8G in the plaint to the effect that for no valid reason she has not stayed and there has been cruelty as such decree of divorce be passed. Said application was contested and in paragraph 4 it has been mentioned that she is prepared to stay with the applicant and it is the applicant, who has refused to stay with him and application in question is motivated one. Thereafter, Family Court has allowed the said amendment, at this juncture present writ petition has been filed.
Pleadings inter-se parties have been exchanged by way of counter and rejoinder affidavit.
This court on 24.4.2009 in order to find out possibility of re-conciliation asked the petitioner as well as respondent no.2 to be personally present before this court on 19.5.2009. On 19.5.2009 both the petitioner as well as respondent no.2 appeared in person. On the said date as far as Smt. Arti Pandey is concerned, she expressed her willingness to go with the husband Sri. Vishnu Kant Tiwari. As far as Sri. Vishnu Kant Tiwari is concerned, he expressed his apprehension and contended repeatedly that his life would not be safe with the petitioner and and he is the only son of his old parents and entire family may suffer. Thereafter, as re-conciliation could not work, thereafter, matter has been taken up for final hearing /disposal with the consent of the parties.
Sri. H.N. Singh, Advocate, learned counsel for the petitioner contended with vehemence that in the present case Family Judge, Allahabad has totally misdirected itself by allowing amendment application which initially was filed under Section 9 of Hindu Marriage Act for restitution of conjugal rights, and it has been subsequently converted into Section 13 of Hindu Marriage Act i.e. for divorce and thus entire nature of the suit has been changed, as such said amendment could not have been allowed.
Countering the said submission, Sri Ranjit Saxena, Advocate on the other hand contended that plea which is sought to be raised, is totally unsustainable, as in proceeding under Section 9 of Hindu Marriage Act such plea of divorce as alternative relief is always permissible as there is provision of counter claim also, as such plea taken lacks merit and writ petition is liable to be dismissed by this court.
After respective arguments have been advanced, factual position, which is emerging in the present case is that suit in question started with proceeding under Section 9 of Hindu Marriage Act, which deals with restitution of conjugal right, and thereafter amendment application has been moved requesting therein that as wife in question has not discharged her matrimonial obligation, as such act of cruelty has been committed, as such decree of divorce be accorded, said application has been allowed.
At this point, view point of this court as well as other court and Hon'ble Apex Court is being looked into. Hon'ble Apex Court in the case of Smt. Bhavna Adwani Versus Manohar Adwani AIR 1992 M.P. 105 took the view that there is no legal prohibition for moving matrimonail petition both for restitution and for divorce. This court in the case of Pravin Kumar Gupta Versus Smt. Vineeta 1995 ACJ 1233 took the view that refusing to allow the amendment application for converting petition under Section 9 of Hindu Marriage Act to under Section 13 of Hindu Marriage Act was unsustainable and there was no legal prohibition in not moving such application and as such said case was allowed and the amendment was directed to be added. Division Bench of this court in the case of Smt. Shashi Shah Versus Kiran Kumar Shah 1998 ACJ 1433 took the view that if relief of divorce is available on the ground of cruelty and desertion then in a counter claim proceeding for restitution of conjugal right can be converted into those of divorce. Said view has been taken keeping in view of the provision of counter claim, as provided under Section 23-A of Hindu Marriage Act. Hon'ble Apex Court in the case of Chetan Dass Versus Kamla Devi (2001)4 SCC 250 approved of such amendment as is reflected from paragraph 2 of the judgment wherein application under Order 6 Rule 17 C.P.C. was allowed, making a prayer for dissolution of marriage converting the petition from one under Section 9 of Hindu Marriage Act to under Section 13 of Hindu Marriage Act and thus inevitable conclusion based on these judgments is that, even if, prayer has not made for dissolution of marriage under Section 13 of Hindu Marriage Act and petition has been filed under Section 9 of Hindu Marriage Act for restitution of conjugal right, same can be got amended to under Section 13 of Hindu Marriage Act. Husband and wife both as the case may be have got right to file counter claim of the said claim, which has been set up, as is provided under Section 23-A of Hindu Marriage Act either by prayer of conjugal right or by prayer for grant of decree of divorce.
Consequently, in the facts of the present case as suit has been filed for restitution of conjugal right and same has been sought to be converted into suit for divorce under Section 13 of Hindu Marriage Act, then there is no error in the order allowing to amendment application and it is always open to the petitioner to file her counter claim, approving the relief claimed for under Section 23-A of Hindu Marriage Act.
Consequently, present writ petition is disposed of with the direction to Principal Judge, Family Court, Allahabad to decide the matter at the earliest in accordance with law, preferably within period of one year from the date of production of certified copy of this order.
No order as to cost.
Dt. 31.08.2009
Court No. 01
Civil Misc. Writ Petition No. 42891 of 2008
Smt. Arti Pandey
Vs.
Principal Judge, Family
Court, Allahabad
Hon'ble V.K.Shukla,J
Present writ petition under Article 226/227 of the Constitution of India (Smt. Arti Pandey, Versus Principal Judge, Family Court, Allahabad and others) has been filed for quashing of the order dated 8.8.2008 passed by the Principal Judge, Family Court, Allahabad in Matrimonial Petition No. 688 of 2005 (Vishnu Kant Tiwari Versus Smt. Arti Pandey) wherein amendment application Paper No. 27K has been allowed and suit filed under Section 9 of the Hindu Marriage Act has been directed to be converted into under Section 13 of Hindu Marriage Act for divorce.
Brief background of the case is that Vishnu Kant Tiwari filed proceeding under Section 9 of the Hindu Marriage Act before the Principal Judge, Family Court, Allahabad being Matrimonial Petition No. 688 of 2005 and therein prayer made was that his wife in-spite of repeated call given, has not joined in respect of discharge of her matrimonial obligation. Said suit was contested by Smt. Arti Pandey by filing written statement and it was indicated therein that totally false statement of fact has been mentioned and further she has been harassed and victimised. Thereafter, application was moved under Order 6 Rule 17 of C.P.C. for adding paragraph No. 8A, 8B, 8C, 8D, 8E, 8F and 8G in the plaint to the effect that for no valid reason she has not stayed and there has been cruelty as such decree of divorce be passed. Said application was contested and in paragraph 4 it has been mentioned that she is prepared to stay with the applicant and it is the applicant, who has refused to stay with him and application in question is motivated one. Thereafter, Family Court has allowed the said amendment, at this juncture present writ petition has been filed.
Pleadings inter-se parties have been exchanged by way of counter and rejoinder affidavit.
This court on 24.4.2009 in order to find out possibility of re-conciliation asked the petitioner as well as respondent no.2 to be personally present before this court on 19.5.2009. On 19.5.2009 both the petitioner as well as respondent no.2 appeared in person. On the said date as far as Smt. Arti Pandey is concerned, she expressed her willingness to go with the husband Sri. Vishnu Kant Tiwari. As far as Sri. Vishnu Kant Tiwari is concerned, he expressed his apprehension and contended repeatedly that his life would not be safe with the petitioner and and he is the only son of his old parents and entire family may suffer. Thereafter, as re-conciliation could not work, thereafter, matter has been taken up for final hearing /disposal with the consent of the parties.
Sri. H.N. Singh, Advocate, learned counsel for the petitioner contended with vehemence that in the present case Family Judge, Allahabad has totally misdirected itself by allowing amendment application which initially was filed under Section 9 of Hindu Marriage Act for restitution of conjugal rights, and it has been subsequently converted into Section 13 of Hindu Marriage Act i.e. for divorce and thus entire nature of the suit has been changed, as such said amendment could not have been allowed.
Countering the said submission, Sri Ranjit Saxena, Advocate on the other hand contended that plea which is sought to be raised, is totally unsustainable, as in proceeding under Section 9 of Hindu Marriage Act such plea of divorce as alternative relief is always permissible as there is provision of counter claim also, as such plea taken lacks merit and writ petition is liable to be dismissed by this court.
After respective arguments have been advanced, factual position, which is emerging in the present case is that suit in question started with proceeding under Section 9 of Hindu Marriage Act, which deals with restitution of conjugal right, and thereafter amendment application has been moved requesting therein that as wife in question has not discharged her matrimonial obligation, as such act of cruelty has been committed, as such decree of divorce be accorded, said application has been allowed.
At this point, view point of this court as well as other court and Hon'ble Apex Court is being looked into. Hon'ble Apex Court in the case of Smt. Bhavna Adwani Versus Manohar Adwani AIR 1992 M.P. 105 took the view that there is no legal prohibition for moving matrimonail petition both for restitution and for divorce. This court in the case of Pravin Kumar Gupta Versus Smt. Vineeta 1995 ACJ 1233 took the view that refusing to allow the amendment application for converting petition under Section 9 of Hindu Marriage Act to under Section 13 of Hindu Marriage Act was unsustainable and there was no legal prohibition in not moving such application and as such said case was allowed and the amendment was directed to be added. Division Bench of this court in the case of Smt. Shashi Shah Versus Kiran Kumar Shah 1998 ACJ 1433 took the view that if relief of divorce is available on the ground of cruelty and desertion then in a counter claim proceeding for restitution of conjugal right can be converted into those of divorce. Said view has been taken keeping in view of the provision of counter claim, as provided under Section 23-A of Hindu Marriage Act. Hon'ble Apex Court in the case of Chetan Dass Versus Kamla Devi (2001)4 SCC 250 approved of such amendment as is reflected from paragraph 2 of the judgment wherein application under Order 6 Rule 17 C.P.C. was allowed, making a prayer for dissolution of marriage converting the petition from one under Section 9 of Hindu Marriage Act to under Section 13 of Hindu Marriage Act and thus inevitable conclusion based on these judgments is that, even if, prayer has not made for dissolution of marriage under Section 13 of Hindu Marriage Act and petition has been filed under Section 9 of Hindu Marriage Act for restitution of conjugal right, same can be got amended to under Section 13 of Hindu Marriage Act. Husband and wife both as the case may be have got right to file counter claim of the said claim, which has been set up, as is provided under Section 23-A of Hindu Marriage Act either by prayer of conjugal right or by prayer for grant of decree of divorce.
Consequently, in the facts of the present case as suit has been filed for restitution of conjugal right and same has been sought to be converted into suit for divorce under Section 13 of Hindu Marriage Act, then there is no error in the order allowing to amendment application and it is always open to the petitioner to file her counter claim, approving the relief claimed for under Section 23-A of Hindu Marriage Act.
Consequently, present writ petition is disposed of with the direction to Principal Judge, Family Court, Allahabad to decide the matter at the earliest in accordance with law, preferably within period of one year from the date of production of certified copy of this order.
No order as to cost.
Dt. 31.08.2009
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