DEBASISH GHOSH Vs. SOMA GHOSH

JUDGEMENT

(1.) The present Civil Revisional Application raises a short but important question relating to right of a party to amend the written statement in a matrimonial suit, instituted under section 12(1) (a) of the Hindu Marriage Act for annulment of marriage. From the materials on records, it appears that after all other stages, excepting arguments, had been completed, an application was made, on behalf of the wife/petitioner under Order 6, Rule 17, of the Code of Civil Procedure for amendment of her written statement by incorporating allegation of impotency of the plaintiff-husband. From the copies of evidence, adduced on behalf of the contesting parties, it appears further that, in course of cross-examination, suggestion had been given to the husband regarding such impotence of him and the husband expressed his readiness to undergo medical examination for the same. The original written statement, upon a proper reading, can be said to contain some hint about such impotency. The learned Trial Judge, in spite of the aforesaid state of facts, allowed the application for amendment by the impugned order, which has been assailed in the present Revisional Application, on behalf of the husband, as mala fide, belated and wholly unnecessary.

(2.) In order to succeed in an action under section 12(1) (a), of the Hindu Marriage Act, the plaintiff must establish, on evidence, that there has been no consummation of marriage due to impotence of the respondent. Apparently, therefore, it can with justification be argued that impotence of the plaintiff, in such an action, is not at all relevant. It cannot, however, be disputed that even in the case of the impotence of the plaintiff, there may be non-consummation of marriage. The finding of non-consummation by a court of law, therefore, without taking into consideration, the impotence of the plaintiff, cannot be said to be complete nor reflecting correct factual position. A final decree, passed in such a situation, annulling the marriage cannot be also said to be just and lawful. A defence, based on the impotence of the plaintiff, therefore, cannot be said to be irrelevant in a proceeding under section 12(1)(a), of the Hindu Marriage Act. Provisions of Order VIII of the Code of Civil Procedure vests a defendant, in such a suit, with a right to plead impotence of the plaintiff and in the instant case, therefore, the defendant could have very well pleaded such a defence in her original written statement. The aforesaid view does not come in conflict with AIR 1970 SC 137. Not having done so, a question has been raised as to whether by way of amendment, at a belated stage, such a defence, which could, otherwise, have been a relevant defence, be allowed to be pleaded. The language of Order VI, Rule 17 of the Code of Civil Procedure unequivocally shows the existence of such power in the court of law as to allow all amendments, which may be necessary for the purpose of determining the real questions in controversy between the parties. We have already indicated the relevance and necessity of such facts regarding the impotence of the husband for determining the real questions in controversy between the parties so that the decree on ultimate adjudication, may be just and proper. It is judicially well settled that amendment of such a nature ought not to be refused merely on the grounds of delay or negligence on the part of the party applying for the same. Question of mala fide cannot be said to be germane in the case of an amendment of the nature involved in the present suit. The belated nature of amendment, in equity, may entitle the other party to reasonable amount of cost.

(3.) Applying the aforesaid principles and for the reasons as mentioned hereinabove, we are of the view that the impugned order does not call for any interference in the revisional jurisdiction but in view of the belated nature of the prayer made on behalf of the defendant-wife, we direct that a sum of Rs. 85/- be paid to the plaintiff-husband as costs. The Revisional Application, therefore, fails and is dismissed. There is a prayer for stay of operation of our order as also of certificate to move the Supreme Court which we refuse in view of reasons given by us. This matter for judgment delivered today be treated as on day's list upon notice to the learned Advocates, for both the parties. Let xerox copies of this order be delivered to the learned Advocates, for both the parties, on their usual undertakings to apply for and obtain urgent certified copies. B. M. Mitra, J.-I agree. Appeal fails.