K. SEKAR Vs. M. DHIVYA

JUDGEMENT

(1.) The arguments advanced by Mr. Lenin, learned counsel for the petitioner and by Mr. Devaraj Mahesh, learned counsel for the respondent are heard. The respondent is none other than the wife of the petitioner herein. The petitioner filed the O.P. No. 1562 of 2014, which is now pending on the file of the learned III Additional Judge, Family Court, Chennai, for the relief of divorce on the ground of cruelty. In fact, the petition was sought to be filed both on the ground of cruelty and desertion. Since the pleading revealed that the desertion alleged by the petitioner was not the minimum period of desertion contemplated under the statute enabling him to seek divorce on the ground of desertion, the petition was sought to be returned questioning how a petition for divorce on the ground of desertion would lie. But the petitioner chose to delete the ground of desertion, accepting the objection raised by the office of the Family Court. Thereafter, the respondent (wife) entered appearance. Subsequently, on completion of two years from the date on which the petitioner and the respondent started living separately, the petitioner filed I.A. No. 117 of 2015 seeking permission to amend the petition to include the ground of desertion also as one of the grounds on which the relief of divorce was sought for. The said application was resisted by the respondent herein. The learned trial Judge, after hearing both sides, chose to dismiss the said petition by an order dated 11.08.2015 on the premise that one more ground, which was not available at the time of filing of the original petition, was sought to be included, thereby changing the nature of the proceeding. It is as against the said order of the learned III Additional Judge, Family Court, Chennai, the present civil revision petition came to be filed.

(2.) It is the contention of the learned counsel for the petitioner that though the ground of desertion for seeking divorce was not available on the date of filing of the original petition, since the period of desertion was a little sort of two years, subsequently, on completion of the period of two years of alleged desertion, the petitioner became entitled to seek divorce on that ground also and that hence, he applied for amendment of the original petition seeking divorce on the ground of desertion also.

(3.) The learned counsel for the respondent would submit that the cause of action for seeking divorce on the ground of desertion having not arisen on the date of presentation of the original petition, the prayer of the petitioner was rightly rejected by the learned trial Judge and that in any event, the dismissal of the amendment petition would not have the effect of snatching the right of the petitioner to file a separate petition for divorce on the ground of desertion from him.