Arish Rajan v. Jitha Raj

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM 'CR'** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.HARILAL** ## **&** **THE HONOURABLE MRS. JUSTICE ANNIE JOHN** **TUESDAY, THE 18TH DAY OF JUNE 2019 / 28TH JYAISHTA, 1941** **OP (FC).No.633 of 2018** **AGAINST THE ORDER IN IA 4844/2018 IN OP 1989/2016 of FAMILY COURT,THRISSUR DATED 29-10-2018** ## **PETITIONER/PETITIONER:** **ARISH RAJAN AGED 38 YEARS S/O K.K.RAJAN,KALAPPURAKKAL HOUSE,KARUVAN ROAD,CHIYYARAM PO,THRISSUR ,KERALA,PIN-680026** **BY ADVS. SMT.JEENA JOSEPH SMT.V.J.SUMI LIZA SRI.G.D.PANICKER** ## **RESPONDENT/RESPONDENT:** **JITHA RAJ, AGED 31 YEARS D/O T.K. RAJAN,THARAYIL HOUSE,ANAIKKAL,PORKOLANGAD PO,KUNNAMKULAM,THRISSUR DISTRICT,PIN 680517** **BY ADVS. SRI.SANTHOSH P.PODUVAL SMT.R.RAJITHA** **THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON 18.06.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** O.P(FC).633/18 **:** 2: **C.R.** ## **JUDGMENT** **K.Harilal,J** . 1.The petitioner and the respondent are the husband and the wife. Their marital relationship has become strained subsequently and the petitioner filed O.P.No.1989/2016, under Section 12(1)(a) of the Hindu Marriage Act, seeking a decree for annulling the marriage, before one year from the date of marriage. But, subsequently, the petitioner felt that one more prayer is also to be incorporated, to get the marriage dissolved, under Section 13(1)(ia) of the Hindu Marriage Act, if the former prayer is not allowed. On the above premises, the petitioner preferred an application to amend the Original Petition, so as to incorporate a new relief seeking dissolution of marriage, on the O.P(FC).633/18 **:** 3: ground of cruelty, under Section 13(1)(ia) of the Hindu Marriage Act as I.A.No.4844/2018. 2. The respondent filed counter statement opposing the said Interlocutory Application, contending that the application itself is not maintainable. According to the respondent, the entire cause of action to declare the marriage as null and void is different from the cause of action for divorce alleged in the application seeking amendment. In the case of divorce, at first, the petitioner has to admit the marriage. But, in the case of declaration that the marriage is null and void, there is no marriage at all. Moreover, by amendment, the new relief will be taken back to the date of filing of the Original Petition. But, on that day, the petition, seeking dissolution of marriage, on the ground of cruelty, could not have been filed, since the O.P(FC).633/18 **:** 4: requisite period of one year from the date of marriage, for instituting the original petition, insisted under Section 14 of the Act was not satisfied. Thus, the Original Petition seeking dissolution of marriage could have been barred, had it been filed on the date of the Original Petition. Therefore, such an amendment cannot be allowed in a subsequent stage. Lastly, the relief of divorce was not as an sought, alternative prayer. 3. The Family Court, after considering the said objection filed by the respondent, passed the impugned order, dismissing the application seeking amendment, on the ground that the divorce cannot be sought as an alternative prayer and the amendment cannot be allowed, as the Original Petition was originally filed before one year from the date of marriage and an O.P(FC).633/18 **:** 5: Original Petition seeking dissolution of marriage on the ground of Section 13(1)(ia) of the Hindu Marriage Act could not have been filed before the expiry of one year from the date of marriage. Therefore, an amendment, which could have barred the Suit/Original Petition, at the time of institution of it, could not be allowed, by way of amendment, in a subsequent stage of that Suit/Original Petition. The legality and correctness of the aforesaid are findings challenged in this O.P(FC). 4. Heard the learned counsel for the petitioner and the learned counsel appearing for the respondent. 5. The question to be considered is, whether the fresh pleadings or the reliefs, which would have barred the institution of the suit at the time O.P(FC).633/18 **:** 6: of filing it, for non-completion of the requisite statutory period for the institution, be incorporated by way of amendment in a pending suit, at a subsequent stage, after the completion of the requisite statutory period, to institute it. 6. In _**Siddalingamma and another v. Mamtha Shenoy**_ **[2001 (8) SCC 561]** the Supreme Court has held thus: _"On the doctrine of relation back, which generally governs amendment of pleadings, unless for reasons the court excludes the applicability of the doctrine in a given case the petition for eviction as amended would be deemed to have been filed originally as such and the evidence shall have to be appreciated in the light of the averments made in the amended petition."_ ## 7. In _**Sampath Kumar v. Ayyakannu and another**_ **[2002** O.P(FC).633/18 **:** 7: **(7) SCC 559]** the Supreme Court, relying on _**Siddalingamma's**_ case, held as follows: _"An amendment once incorporated relates back to the date of the suit. However, the doctrine of relation-back in the context of amendment of pleadings is not one of universal application and in appropriate cases the court is competent while permitting an amendment to direct that the amendment permitted by it shall not relate back to the date of the suit and to the extent permitted by it shall be deemed to have been brought before the court on the date on which the application seeking the amendment was filed."_ 8. This decision is seen followed by this court in _**Rajesh v. Sheela**_ **[2010 (3) KLT 226].** - 9.But, we have noticed that in the aforesaid decisions, neither the Supreme Court nor this court has laid down the circumstances under which the doctrine of relation-back can be O.P(FC).633/18 **:** 8: applied or cannot be applied. That apart, in all the aforesaid decisions, the amendments were sought, on the basis of subsequent development, during the pendency of the suits. More clearly, there was no occasion to consider the amendment seeking incorporation of a new relief on the basis of the original pleadings or to consider the question, which we have framed above in this case. But, in the instant case, we are confronting with such a situation. 10. We find that there is vast difference between amendment seeking to add new relief on the basis of the original pleadings during the pendency of the suit and amendment seeking addition of new relief on the basis of subsequent development during the pendency of the original suit. It is a matter of serious concern, when the amendment sought in a pending O.P(FC).633/18 **:** 9: suit/original petition is one, which would have barred the institution of the suit, had it been incorporated in the plaint/original petition at the institution of the same. 11. In a case where the new relief, which is sought to be incorporated by way of amendment, has arisen from the original pleadings or cause of action itself and that relief would have barred the institution of the suit, had it been incorporated in the suit, at the time of institution of the suit, that amendment cannot be excluded from the doctrine of relation-back. Such amendment shall be deemed to have been existed originally at the time of institution of the suit. Consequently, the new relief, which would have barred the institution of the suit due to the non-completion of the requisite statutory period to institute the suit, cannot O.P(FC).633/18 **:** 10: be allowed to be incorporated in a subsequent stage by way of amendment, in a pending suit. 12. We are of the opinion that any view, other than the above view point, would defeat the intention of the legislature for insisting the completion of such a requisite period for instituting the suit. The object, for which the restriction and consequential bar, imposed in the statute would be defeated, if such a relief is allowed to be incorporated in a prematurely instituted suit. Moreover, in our view, a provision in a procedural law shall not be interpreted to defeat another provision in a substantive law, for which the procedural law is made applicable. 13. Coming to the instant case, it is not disputed that originally the O.P. was filed O.P(FC).633/18 **:** 11: seeking a declaration that the marriage is null and void and the same was filed before the expiry of one year from the date of marriage. As rightly pointed out by the court below, according to Section 14 of the Hindu Marriage Act, it shall not be competent for any Court to entertain any petition for dissolution of marriage by a decree of divorce, unless on the date of presentation of the petition one year has elapsed since the date of marriage. In the instant case, in paragraphs 1 to 16 of the original pleadings, the petitioner has specifically described several incidents disclosing 'cruelty' from the part of the respondent towards him and the O.P. was filed before the expiry of one year. Certainly, had the petitioner instituted the Original Petition with a prayer seeking a decree for dissolution O.P(FC).633/18 **:** 12: of marriage, on the ground of cruelty, the Family Court would have dismissed the Original Petition _in limine,_ in view of the statutory bar, under Section 14 of the Hindu Marriage Act, 1955. Here, the matter sought to be incorporated by way of amendment is nothing other than the relief, which would have barred the Suit at the time of institution of the Original Petition. As rightly observed by the Family Court, such an amendment cannot be allowed, as the same would defeat the object of Section 14 of the Hindu Marriage Act. The pleadings and reliefs thereon, which would have barred the institution of the suit, for the noncompletion of requisite statutory period, cannot be introduced by way of an amendment in a subsequent stage, after the completion of the requisite period, in a suit filed before the O.P(FC).633/18 **:** 13: completion of the requisite statutory period. 14. Thus, we find that there is no illegality or impropriety in the aforesaid findings, whereby the Family Court dismissed the application seeking amendment to the Original Petition. The rejection of this amendment will not preclude the petitioner from filing a fresh O.P., for the dissolution of marriage under Section 13(1)(ia) of the Hindu Marriage Act. 15. This O.P(FC) is dismissed accordingly. Sd/- ## K.HARILAL JUDGE Sd/- ANNIE JOHN JUDGE okb //True copy// P.S. to Judge O.P(FC).633/18 **:** 14: ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1** **A TRUE PHOTOCOPY OF THE PETITION FILED BY THE PETITIONER AS OP NO.1989/2016** **EXHIBIT P2** **A TRUE PHOTOCOPY OF THE I.A NO 4844/2018 FILED BY THE PETITIONER.** **EXHIBIT P3 A PHOTO COPY OF THE OBJECTION FILED BY THE RESPONDENT.** **EXHIBIT P4 A CERTIFIED COPY OF THE ORDER IN IA NO.4844/2018 DATED 29.10.2018**