9911796707
TMI Blog2015 (5) TMI 1118X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. - MAT. Appeal No. 32/2009 - - - Dated:- 28-5-2015 - V. K. Shali, J. For the Appellant : A. S. Chandhiok, Senior Advocate with Avnish Ahlawat Rashmi Chopra, Advocates. For the Respondent : Jai Bansal Nath Mohan Prafulla, Advocates. JUDGMENT V. K. Shali, J. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed on 27.9.2008 and the case was set down for trial. The respondent/petitioner filed his affidavit of evidence on 28.11.2008 and 7.1.2009 and the case was adjourned to 11.2.2009. 7. On 9.2.2009, the appellant/defendant filed an application under Section 151 CPC seeking dismissal of the petition on the ground that a false averment has been made in the petition with regard to the status of the respondent/petitioner and further that the divorce petition has been filed under HMA while as admittedly the marriage has taken place under Special Marriage Act. Therefore, the petition on the face of it was not maintainable. 8. The respondent/petitioner filed his reply to the application and stated that the petition for divorce cannot be dismissed on account of the error which has crept in the petition with regard to the mentioning of the provision for grant of divorce which admittedly was cruelty and the said ground of cruelty apart from being a ground under Section 13 (1) (a) of the HMA is also a ground for grant of divorce under Section 27 of the Special Marriage Act. It was also contended that the learned ADJ who is to try the divorce petition under the HMA is also to try the divorce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Stephen Joshus's case (supra), the question which had arisen was whether a Christian married under the Christian Marriage Act could be granted divorce on the basis of mutual consent under Special Marriage Act. The submission which was made before the Hon'ble High Court of Delhi was that since under the Special Marriage Act, 1954, mutual consent is a ground of divorce it is equally applicable to all the citizens of India irrespective of the fact that as to whether the marriage is solemnized under the same or other provisions of law. Section 28 of the Christian Marriage Act does not create a bar on grant of divorce by mutual consent. 14. This contention was negatived by the High Court stating that the divorce can be granted only on the grounds which are available under a particular act under which parties have got married meaning thereby that since parties were married under the Christian Marriage Actand under the said Act there was no provision for grant of divorce by mutual consent and therefore their marriage could not be dissolved by mutual consent. Similar is the judgment in Mohan Raj's case (supra). 15. In D. Jacintha Kamath's case (supra) the question wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ial Marriage Act has to be the District Judge and incidentally in the instant case, it is the same additional District Judge who is to decide the application for amendment both under the Special Marriage Act and the Hindu Marriage Act. 20. Therefore, the same District Judge dealing with the divorce petition under the Hindu Marriage Act as well as Special Marriage Act in my view does not lack the jurisdiction to entertain the application of the respondent. 21. It may also be stated that objections with regard to the jurisdiction so far as the subject matter is concerned, ought to have been taken by the respondent at the earliest possible stage to avoid wastage of time and energy of both the litigants as well as of the court staff. In the instant case, the matter has been filed in 2005 the evidence by way of affidavit has been filed in 2008 and the cross examination of the witness is yet to be completed. The matter has been pending now in courts for the last more than a decade and, therefore, to dismiss the divorce petition on the ground of lack of inherent jurisdiction when the same is due to an inadvertent drafting error which can be corrected by an amendment simplicitor, wou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of a suit recall any witness who has been examined and may subject to the law of evidence for the time being in force put such questions to him as the Court thinks fit. 27. In the aforesaid case, although the application for recalling and examination of a witness was filed but wrong provision of law was mentioned. The Supreme Court although impressed upon correct mentioning of the provisions of law for filing the application, but on merits of the matter as the application was filed under a wrong provision, the aggrieved party was permitted to file a fresh application under Order 18 Rule 17 which if it chose to do and the same was to be dealt with by the trial court meaning thereby that although the court impressed upon the mentioning of the correct provisions of law for the purpose of filing of an application or for that matter which would applicable to a petition also, but it did not oust the aggrieved party in the said case only on technicalities of not granting it an opportunity to rectify the deficiency by filing a fresh application under the relevant provision. 28. There is no quarrel with the proposition of law laid down in the said judgment that correct provision of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... regard to the timely objection regarding the inherent lack of jurisdiction not being taken by the appellant, does not create any bar against the appellant raising that objection now. 33. In the instant case, there is no lack of inherent jurisdiction of the forum to deal with the divorce petition. It is the same district judge who deals with the divorce petitions under different enactments. The question was whether persons who had got married under Special Marriage Act can be given divorce when the petition for divorce has been filed under H.M.A., certainly answer to this question is in negative. But then the question would arise should the petition be amended? The trial court has suo moto given direction to amend the petition. 34. The next submission is also connected with the earlier submissions that the appellant's conduct or his participation in the proceedings will not confer jurisdiction on a court or a Judge who inherently lacks the same. 35. Since I have already held above that there is no inherent lack of jurisdiction, therefore, this submission of the learned senior counsel for appellant that the appellant's participation will not confer the jurisdiction i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iction to entertain and proceed with the divorce petition filed by the respondent under Section 13 (1) (i-a) of the Hindu Marriage Act, 1955 and therefore, the application under Section 25 of the Hindu Marriage Act which was for permanent alimony which is to be granted at the time of divorce was itself not maintainable. The Hon'ble High Court did not accept this plea of the petitioner for setting aside the order by giving the reasoning that there is no dispute that the learned District Judge, Shillong had the jurisdiction to entertain the divorce petition, both under the provisions of Hindu Marriage Act and Special Marriage Act. It was also noted that incidentally, cruelty which was a ground for filing a petition for grant of divorce under the Hindu Marriage Act was also a ground for divorce under the Special Marriage Act under Section 27 (1) (d). It was also taken note that Section 36 of the Special Marriage Act provides interim maintenance and a similar provision for ad interim maintenance is made under Section 38 for the minor child. The High Court observed that the learned counsel for the petitioner was not able to show that the petition filed by the respondent for grant of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stent in the Special Marriage Act. 41. As against this, in the present case, the marriage originally had taken place according to Hindu Rights and Ceremonies in the year 1986. The said marriage was dissolved by a decree of divorce from a competent court on 02.06.1988. The parties had again got married under the Special Marriage Act and once they got married under Special Marriage Act, therefore, their conduct with regard to the grant of divorce or relationship would be covered under the Special Marriage Act only. The respondent filed a petition for divorce under the Hindu Marriage Act. It is only incidental that some of the grounds which are available in Hindu Marriage Act may be available as a ground for divorce under the Special Marriage Act or under the other matrimonial laws like Christian Marriage Act, but that would not be a ground to convert a petition which is filed under one enactment to a petition under another enactment as that would be resulting in chaos because then there will be no end to the plea which will be available to a party though the marriage had taken place in a particular law but the ground of divorce is available in the different law and that is why the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t made into a litigant non grata for inadvertent deficiencies as the same might lead to a meritorious case being thrown out at the very threshold for mere technicalities. 46. In B.K.Narayana Pillai v. Parameswaran Pillai; AIR 2000 SC 614, the Hon'ble Apex Court has held as under: The purpose and object of Order 6 Rule 17 CPC is to allow either party to alter or amend his pleadings in such manner and on such terms as may be just. The power to allow the amendment is wide and can be exercised at any stage of the proceedings in the interests of justice on the basis of guidelines laid down by various High Courts and the Supreme Court. It is true that the amendment cannot be claimed as a matter of right and under all circumstances. But it is equally true that the courts while deciding such prayers should not adopt hypertechnical approach. Liberal approach should be the general rule particularly in cases where the other side can be compensated with the costs. Technicalities of law should not be permitted to hamper the courts in, the administration of justice between the parties. Amendments are allowed in the pleadings to avoid uncalled for multiplicity of litigation. 47. W ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
