2015 (5) TMI 1118 - HC - Indian Laws

Petition for divorce filed under Section 13(i)(a) of the Hindu Marriage Act was - dismissal of petition as the marriage between the parties had been contracted under the Special Marriage Act, therefore, the petition for divorce ought to have been filed under the Special Marriage Act - direction to the respondent to amend the divorce petition - Held that - The court has no power of its own unlike under Section 151 CPC or under Order 14 Rule 5 CPC or Order 1 Rule 10 CPC to pass an order which may be warranted under law in those contingencies. As has already been discussed in the previous paras, the learned Trial Judge, in my considered opinion, has exceeded its jurisdiction of also giving a direction to the respondent to amend the plaint and treat the provisions of Section 13(1) (a) i.e. ground of cruelty as a ground for grant of divorce under the Special Marriage Act. When a party approaches a counsel for legal advice and entrusts the matter to him, it is presumed that the same shall be dealt with utmost professionalism and due despatch. In Rafiq v.Munshilal; (1981 (4) TMI 255 - SUPREME COURT), the Hon ble Supreme Court has held that once a person engages his counsel his botheration goes and it is the duty of the counsel to take care of the case. In the instant case, the inadvertent drafting error seems to have crept in on the part of the drafting counsel which mistake should not prejudice the interest of the party. In the light of the aforesaid facts, the appeal is partly allowed holding that the court had no power suo moto to amend the plaint or give directions to that effect to any party. However, keeping in view the peculiar facts and circumstances of the case, that the case has been pending in court for the last nearly ten years and it would advance substantive justice between the parties, an opportunity is given to the respondent to take corrective steps within a period of six weeks to rectify his mistake. In case such an application is filed, it shall be dealt within accordance with law.

Summary

Issues Involved:
1. Jurisdiction of the court under the Hindu Marriage Act (HMA) versus the Special Marriage Act (SMA).
2. Impact of incorrect legal provisions cited in the divorce petition.
3. Timeliness and impact of raising jurisdictional objections.
4. Alleged suppression of material facts.
5. Authority of the court to direct amendments in pleadings.

Detailed Analysis:

1. Jurisdiction of the court under HMA vs. SMA:
The primary issue was whether a court could entertain a divorce petition filed under the Hindu Marriage Act when the marriage was solemnized under the Special Marriage Act. The appellant contested the jurisdiction, arguing that the divorce petition should have been filed under the SMA. The court held that the trial judge had jurisdiction to entertain the petition under both HMA and SMA because the grounds for divorce (cruelty and desertion) were common to both acts.

2. Impact of Incorrect Legal Provisions Cited:
The appellant argued that the petition should be dismissed due to the incorrect citation of legal provisions. The court emphasized that while correct legal provisions should be cited, an inadvertent error should not lead to the dismissal of a petition if the substantive grounds for divorce are present. The court referenced the Supreme Court's stance in Jeet Mohinder Singh vs. Harminder Singh, which highlighted the importance of substance over form in legal pleadings.

3. Timeliness and Impact of Raising Jurisdictional Objections:
The appellant raised jurisdictional objections late in the proceedings. The court noted that such objections should be raised at the earliest possible stage to avoid unnecessary delays. Since the case had been pending for over a decade, the court found it inappropriate to dismiss the petition based on a technicality that could be rectified through amendment.

4. Alleged Suppression of Material Facts:
The appellant claimed that the respondent had suppressed material facts. The court held that this issue pertained to the merits of the case and should be addressed during the trial, not as a ground for procedural dismissal.

5. Authority of the Court to Direct Amendments in Pleadings:
The court observed that while it had no power to suo moto direct amendments under Order 6 Rule 17 CPC, it could allow amendments to ensure substantive justice. The court referenced B.K. Narayana Pillai v. Parameswaran Pillai, emphasizing a liberal approach to amendments to avoid multiplicity of litigation and ensure justice.

Conclusion:
The appeal was partly allowed. The court held that it had no power to direct amendments suo moto but provided the respondent an opportunity to file an application for amendment within six weeks. The case was directed to proceed before the District Judge, ensuring that the inadvertent error did not prejudice the substantive rights of the parties. The decision underscored the importance of addressing procedural errors without compromising the merits of matrimonial disputes.