SARABJIT SINGH Vs. SAVITA RANI AND ANOTHER

JUDGEMENT

(1.) THE proposed amendments to the written statement are descriptive in nature and do not change the nature of the guardianship case in case they are permitted to be incorporated in the petition. The petitioner husband complains that after affidavits of his witnesses were filed by way of evidence then in order to fill up the lacunas in the written statement, respondent no. 1 -wife sought the amendment to change the facts in order to make out a new case in defence. The question of filling up a lacuna will only arise when evidence has come on record pro and contra for the Guardian Court to opine on whom custody of the child deserves to be given. Affidavits are not yet evidence. They will turn into evidence only after the witnesses are put to cross -examination. It is also not that every lacuna cannot be filled in and each case would have to be examined on its own facts to warrant leave of the Court.

(2.) IN a child custody matter, this Court will not over -react in the presence of the co -respondent with whom the petitioner imputes his wife to be in a relationship. The Civil Judge (Sr. Division), Hisar by her order dated 15th April, 2014 has allowed the amendment holding that it would not change the nature of the case. The Learned counsel for the petitioner complains that a specific plea was taken in the reply in opposing the prayer for amendment sought under Order 6 Rule 17 of the Code of Civil Procedure, 1908 that the amendments in the written statement were cleverly orchestrated after the wife read the affidavits by way of evidence of the witnesses of the petitioner to change her tracks. Counsel submits that this aspect has not been dealt with by the learned court below. Since it is a judicial order which is under examination by this Court, a view can be taken for the first time on this issue in revisional jurisdiction. I have already observed above that there is nothing abhorrent in seeking an amendment of the kind sought after the affidavits have been tendered, but before the cross -examination starts. The proposed amendments are descriptive in nature and do not measure up to retraction from an admission made. The minor child is of 7 years in age and lives with the respondent mother. The petitioner runs a business in India and Spain while the first respondent wife works in a Canteen of a local school.

(3.) CONSEQUENTLY , this revision petition fails and is dismissed.