SUSHMA RAMESHWAR UBALE Vs. RAMESHWAR KESHAO UBALE

JUDGEMENT

(1.) RULE. Rule made returnable forthwith. The petition is heard finally with the consent of the learned counsel for the parties.

(2.) By this petition, the petitioner impugns the order passed by the Principal District Judge, Buldana on 10.12.2010allowing an application filed by the respondent under Order 6, Rule 17 of the Code of Civil Procedure seeking an amendment to the Hindu Marriage Petition filed by him for grant of a decree for divorce. The marriage between the petitioner and the respondent was solemnized on 09.12.1993 and in the year 2003, the respondent filed a petition for grant of a decree of divorce. It was the case of the respondent that the petitioner had deserted him since Holi Festival of the year 1994 and, therefore, he was entitled for grant of a decree of divorce under Section 13(l)(i)(b) of the Hindu Marriage Act. The petitioner filed the written statement and denied the claim of the respondent. It was stated in the written statement that the respondent had deserted the petitioner since 19.06.1997. The trial Court dismissed the Hindu Marriage Petition filed by the respondent. The respondent preferred an appeal against the judgment passed by the trial Court and the same was numbered as Regular Civil Appeal No. 151/2007. During the pendency of the Regular Civil Appeal, an application was filed by the respondent under Order 6, Rule 17 of the Code of Civil Procedure for permission to amend the Hindu Marriage Petition. The application was seriously opposed by the petitioner. However, the learned first appellate Court was pleased to allow the application by the impugned order dated 10.12.2010.

(3.) Shri. Jaltare. the learned counsel for the petitioner, submitted that the first appellate Court was not justified in allowing the application for amendment of the Hindu Marriage Petition at the appellate stage. The learned counsel for the petitioner submitted that by the proposed amendment, the respondent sought to introduce a new case. It is submitted on behalf of the petitioner that in the Hindu Marriage Petition, the ground for seeking the divorce was desertion but. by the proposed amendment it was sought to be brought on record that the petitioner was suffering from skin disease known as Impetigo Contasium. It was also sought to be brought on record by the proposed amendment that the respondent had purchased a property in Chikhli in the name of the father of the petitioner on an understanding that the petitioner would sign Deed of Consent Divorce. The learned counsel for the petitioner submitted that the proposed amendment not only changed the nature of the suit but was also not necessary for deciding the real controversy between the parties. The learned counsel for the petitioner submitted that the facts in the proposed amendment gave rise to a new cause of action, which was totally unconnected with the cause of action on which the Hindu Marriage Petition was instituted. The learned counsel for the petitioner relied on the judgments (Ganeshi Raj & another Vs. First Additional District Judge, Ghazipur & others, 1992 AIR(All) 25 (A. K. Gupta and Sons Ltd. Vs. Damodar Valley Corporation, 1967 AIR(SC) 96) to substantiate his submission.