ALTAF HUSSAIN Vs. HAMIDABAI AND OTHERS

JUDGEMENT

(1.) A rejection of the application for amendment of a reply filed by the petitioner (non-applicant before the trial Court) in the proceedings initiated under section 125 of the Code of Criminal Procedure by the present respondent No. 1 has been challenged in this application.

(2.) The wife (respondent No. 1) along with her two young children filed an application before the Judicial Magistrate, First Class, Buldana, for maintenance under section 125 of the Code vide Misc. Criminal Case No. 12 of 1984. During the pendency of the case the present petitioner filed his reply to the petition. When the case was at an advanced stage, he filed an application for amendment of his reply. Whether the amendment to the reply can be filed and allowed or not is a very technical aspect of matter. Suffice it to say that by this amendment, the petitioner wanted to raise a plea that he had already divorced his wife and as such she was not entitled to claim maintenance. This defence can be a valid defence to an action for maintenance under section 125 of the Code of Criminal Procedure. The question that arises at this stage is whether this was material for the decision of the real controversy or not.

(3.) The learned Magistrate was of the view that this was a fact within the knowledge of the petitioner himself and therefore he could have mentioned this fact in his original statement. There can be no comment about this observation. However, the petitioner is coming before the Court with a case that though he could have agitated this fact in his original reply, he could not do so because of some circumstances mentioned in the application. Could the application be disallowed on this only court? As the application and the averments made therein stand, it can be said with certainty that the petitioner wants to induct a defence which is very material. If the petitioner succeeds in establishing his defence, then perhaps the fate of the petition will be otherwise. The trial Court was, therefore, not justified in rejecting the application for amendment. It is true that the application has been moved after the lapse of about 2 years and from that point of view, it can be legitimately said that the petitioner is guilty of delay.