P KRISHNA MURTHY Vs. MONIKA SIDHU

JUDGEMENT

(1.) Heard. Rule. By consent of parties, petition taken up for final hearing forthwith.

(2.) The petitioner and the respondent are husband and wife respectively, their marriage having been legally solemnized. The petitioner filed the petition for divorce in the Family Court at Hyderabad. The petition came to be filed on the ground of cruelty. However, the title of the petition was shown thus:

(3.) It is undisputed that the averments made in the petition clearly make out a case only under Section 13(1)(ia). The learned Counsel appearing for the respondent after going through the Marriage petition concedes that the averments made in the petition are touching the ground of cruelty only, set out in Section 13(1)(ia) of the Hindu Marriage Act, 1955. With a view to correct the said typographical error, an application was moved seeking amendment of the petition and the rejection on the said application has given rise to the filing of the present writ petition. It would not be out of place to mention at this stage that the present divorce petition was earlier filed in Family Court at Hyderabad wherein an Ex parte decree was passed and the respondent had moved an application for setting aside the Ex parte decree before the Family Court at Hyderabad. The respondent had also approached the Supreme Court with a request to transfer the Marriage Petition from Hyderabad to Goa as respondent is residing at Goa along with her daughters and is gainfully employed at Goa. The Supreme Court partly allowing the petition had directed transfer of the Hindu Marriage Petition to Goa from Hyderabad. After the petition was transferred to Goa, the trial Court had rejected the application filed by the respondent for setting aside the ex parte decree and hence the respondent herein was constrained to approach this Court pressing the prayer for setting aside the ex parte decree. This Court set aside the ex parte decree of Divorce passed in favour of the petitioner and directed the trial Court to decide the Marriage Petition within a period of three months from the date of the order. After passing of the said order, the present petitioner had moved an application for amendment and the same was granted. However, at that time, the petitioner had not realised the typographical error appearing in the petition which wrongfully makes a mention to Section 13(1)(ib) of the Hindu Marriage Act and the said error remained to be corrected which prompted the petitioner to take out yet another application for amendment of the Marriage petition. The error is obvious for two reasons, (1) that the entire petition is based on allegations in relation to cruelty and (2) what is mentioned is that the petition has been filed under Section 13(i)(ib). Clause (i) of Sub-section (1) refers to a situation where the other party after the solemnization of marriage, had voluntary sexual intercourse with any person other than his or her spouse. Whereas (ib) relates to desertion for a continuous period of not less than two years immediately preceding the presentation of the petition. The Marriage petition is pending since the year 2005 and no useful purpose would be served by denying the proposed amendment as I have no iota of doubt that the petition in fact has been filed for divorce on the ground of cruelty. The incorrect mention of the provision in relation to the sub-section cannot be permitted to defeat the cause of justice. Moreso, by allowing the said amendment, no prejudice is to be caused to the respondent as she is aware of the ground on which the Marriage petition has been filed. Written statement refutes the allegations touching cruelty. The trial Court has rejected the amendment application by placing reliance on the provide to Order 6, Rule 17 of the Civil Procedure Code. In my view, the approach of the trial Court is pedantic as the proposed amendment only relates correction of typographical error in the title of the petition. Taking a pragmatic view of the matter the amendment deserves to be allowed.