ARISH RAJAN Vs. JITHA RAJ

JUDGEMENT

(1.) The petitioner and the respondent are the husband and the wife. Their marital relationship has become strained subsequently and the petitioner filed O.P.No.1989/2016, under Section 12(1)(a) of the Hindu Marriage Act, seeking a decree for annulling the marriage, before one year from the date of marriage. But, subsequently, the petitioner felt that one more prayer is also to be incorporated, to get the marriage dissolved, under Section 13(1)(ia) of the Hindu Marriage Act, if the former prayer is not allowed. On the above premises, the petitioner preferred an application to amend the Original Petition, so as to incorporate a new relief seeking dissolution of marriage, on the ground of cruelty, under Section 13(1)(ia) of the Hindu Marriage Act as I.A.No.4844/2018.

(2.) The respondent filed counter statement opposing the said Interlocutory Application, contending that the application itself is not maintainable. According to the respondent, the entire cause of action to declare the marriage as null and void is different from the cause of action for divorce alleged in the application seeking amendment. In the case of divorce, at first, the petitioner has to admit the marriage. But, in the case of declaration that the marriage is null and void, there is no marriage at all. Moreover, by amendment, the new relief will be taken back to the date of filing of the Original Petition. But, on that day, the petition, seeking dissolution of marriage, on the ground of cruelty, could not have been filed, since the requisite period of one year from the date of marriage, for instituting the original petition, insisted under Section 14 of the Act was not satisfied. Thus, the Original Petition seeking dissolution of marriage could have been barred, had it been filed on the date of the Original Petition. Therefore, such an amendment cannot be allowed in a subsequent stage. Lastly, the relief of divorce was not sought, as an alternative prayer.

(3.) The Family Court, after considering the said objection filed by the respondent, passed the impugned order, dismissing the application seeking amendment, on the ground that the divorce cannot be sought as an alternative prayer and the amendment cannot be allowed, as the Original Petition was originally filed before one year from the date of marriage and an Original Petition seeking dissolution of marriage on the ground of Section 13(1)(ia) of the Hindu Marriage Act could not have been filed before the expiry of one year from the date of marriage. Therefore, an amendment, which could have barred the Suit/Original Petition, at the time of institution of it, could not be allowed, by way of amendment, in a subsequent stage of that Suit/Original Petition. The legality and correctness of the aforesaid findings are challenged in this O.P(FC).