Jiby John v. Mincy M.L. and Binu

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: C. K. Abdul Rehim
R. Narayana Pisharadi
Judgment Date: 2018-10-10
Court Decision / Holding: Original Petition dismissed; the Family Court's orders dismissing I.A. Nos.1560/2018 and 1559/2018 are upheld; no interference with Family Court orders.
Final Disposition: Original Petition dismissed.

Parties to the Case

Appellants / Petitioners

Jiby John

Respondents

Mincy M.L.
Binu

Legal Representation & Advocates

Counsels for Petitioners

• M.R. Jayalath
• A.P. Vasavan

Case Synopsis & Summary

Jiby John v. Mincy M.L. and Binu, OP (FC) 516/2018, arises from a divorce petition filed by the husband under Section 10(1)(x) of the Divorce Act, 1869 on grounds of cruelty. In March 2018 the petitioner moved IA Nos. 1559/2018 and 1560/2018 seeking to amend the petition to plead an adulterous affair with a person named Binu and to implead him as a co-respondent. The Family Court dismissed both applications, holding that introducing a fresh ground of adultery and adding a co-respondent is not permissible, especially when the petition itself is grounded only on cruelty. The petitioner challenged these orders under Article 227 of the Constitution before the Kerala High Court. The High Court noted that Ext. P1 (the petition) explicitly states cruelty as the sole ground and contains no express averment of adultery. It observed that para 12 mentions rumours, elopement, and a “wayward life,” but not an act of adultery. Citing Susanta Kumar Mitra v. Himangshu Prova Mitra (AIR 1964 Cal 33), the court underscored that mere gossip or unspecified conduct does not constitute adultery unless pleaded. On amendments, it cited Rameshwar v. Jot Ram (AIR 1976 SC 49) to illustrate the general principle that amendments may be allowed to avoid multiplicity only if the ground existed at filing and without prejudice. Ultimately, the court held the amendments impermissible and dismissed the Original Petition.

Provisions of Law Cited

Section 10(1)(x) of the Divorce Act, 1869Article 227 of the Constitution of India

Legal Doctrines & Maxims

Amendment of pleadings cannot introduce a totally new case; amendments can elaborate or modify pleadings
Right to relief must be judged as on the date of institution of the suit
To avoid multiplicity of litigation, a court may permit amendment provided no prejudice to the other side
Adultery must be pleaded in the petition; mere rumors or distant references do not prove adultery
Amendment may be permissible only if the ground existed at the time of filing

Submissions & Arguments

Contentions of Appellants / Petitioners

Counsel for the petitioner contended that the divorce petition also contains an averment of adultery and that amendments to add the adultery ground and to implead the co-respondent should be permitted; the petition was said to be capable of incorporating the adulterous ground and to rectify the pleading. The petitioner argued to avoid multiplicity of litigation and to ensure a complete adjudication of all relevant facts.

Contentions of Respondents

Respondents opposed the amendments, submitting that introducing a fresh ground of adultery and adding a co-respondent is not permissible under law; the Family Court correctly dismissed those applications given the petition is single-grounded in cruelty.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Susanta Kumar Mitra v. Himangshu Prova Mitra	AIR 1964 Cal 33	Mentioned Only	Cited to illustrate that the petition did not contain an explicit averment of adultery; used as background to stress pleading requirements.
Rameshwar v. Jot Ram	AIR 1976 SC 49	Partly Overruled / Limited	Cited for the general principle that amendments may be permitted to avoid multiplicity if grounded in existing facts; however, the court narrows this by ruling that adding a totally new ground (adultery) is not permissible in the given petition.

Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM** ## **&** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **WEDNESDAY,THE 10TH DAY OF OCTOBER 2018 / 18TH ASWINA, 1940** **OP (FC).No. 516 of 2018** **AGAINST THE ORDER DATED 29.05.2018 IN I.A.NOS.1560/2018 & 1559/218 IN OP 450/2017 of FAMILY COURT,THRISSUR** ## **PETITIONER/PETITIONER:** **JIBY JOHN AGED 41 YEARS S/O.YOHANNAN, PUTHENVILA THEKKETHIL HOUSE, KODUMON VILLAGE AND DESOM, PATHANAMTHITTA DISTRICT 691555.** **BY ADVS. SMT.M.R.JAYALATHA SRI.A.P.VASAVAN** ## **RESPONDENTS/RESPONDENTS:** **1 MINCY M.L. AGED 37 YEARS D/O.M.T.LONAPPAN, MECHRY HOUSE, MELUR P.O, CHALAKKUDY, MUKUNDAPURAM TALUK, THRISSUR DISTRICT 680311. 2 BINU AGED 41 YEARS, S/O.JACOB, PLAMOTTATHIL KODUMON VILLAGE AND DESOM, PATHANAMTHITTA DISTRICT 691555.** **THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON 03.10.2018, THE COURT ON 10.10.2018 PASSED THE FOLLOWING:** O.P.(FC) No.516/2018 2 ## **C.K.ABDUL REHIM** ## **&** ## **R.NARAYANA PISHARADI, JJ.** ************************** O.P.(FC) No.516 of 2018 -----------------------------------------------Dated this the 10[th] day of October, 2018 ## **JUDGMENT** ## **R.Narayana Pisharadi, J** The petitioner is the husband and the first respondent is the wife. 2. The petitioner has filed O.P.No.450/2017 in the Family Court for granting a decree of divorce under Section 10(1)(x) of the Divorce Act, 1869 (hereinafter referred to as 'the Act'). The petition for divorce was filed by him on 30.05.2016. However, in March, 2018 he filed two applications as I.A.Nos.1559/2018 and 1560/2018 in the Family Court. The application I.A.No.1559/2018 was filed for amendment of the petition for divorce to incorporate an averment that the first respondent had illicit relationship with a person by name Binu. The application I.A.No.1560/2018 was filed for impleading the aforesaid person as a co-respondent in the petition for divorce, on the ground that he is the adulterer. 3. The first respondent filed objection to the aforesaid O.P.(FC) No.516/2018 3 applications. 4. The Family Court dismissed both the applications mentioned above. The order passed by the Family Court in I.A.No.1560/2018 reads as follows: _“Counter filed. Heard. In the original petition the OP is for divorce on the ground of cruelty. A fresh ground of adultery and to implead additional respondent is not permitted in law. Hence the petition is dismissed.”_ The Family Court dismissed the application I.A.No.1559/2018 stating as follows: _“Since the impleading petition is dismissed, I.A is also dismissed.”_ 5. The aforesaid orders passed by the Family Court are under challenge in this Original Petition filed under Article 227 of the Constitution of India. 6. We have heard learned counsel for the petitioner. 7. The petition for divorce is filed under Section 10(1) (x) of the Act on the ground of cruelty alone. Ext.P1 is the copy of the petition for divorce filed by the petitioner in the Family Court. It is specifically stated in paragraph 20 of the aforesaid petition that the petitioner is entitled for a decree of divorce on the ground of cruelty. There is no averment in the petition for O.P.(FC) No.516/2018 4 divorce that the petitioner is entitled to get a decree of divorce on the ground of adultery. 8. Learned counsel for the petitioner submitted that the petition for divorce is filed on the ground of adultery also. We do not find any substance in this submission. 9. At this juncture, we may note that in the copy of the petition for divorce produced before this Court as Ext.P1, paragraph No.19 is seen incorporated after paragraph No.13 and paragraph Nos.14 to 18 are missing. Learned counsel for the petitioner has not offered any explanation for this. 10. As noticed earlier, the petition for divorce is filed under Section 10(1)(x) of the Act, that is, only on the ground of cruelty. Even if it is accepted that absence of the proper provision of law in the title of the petition is of no consequence, it is to be noted that the petition for divorce does not contain any averment regarding any act of adultery committed by the first respondent. What is stated in paragraph 12 of the petition for divorce is the following: _“After she left the matrimonial home on 24[th] March 2016 news spread like a wild conflagration that the respondent had eloped with someone. Speculation was agog that the respondent was leading a lascivious and libidinous life. More_ O.P.(FC) No.516/2018 5 _skeletons fell out of the cupboard. The respondent was leading a wayward life to the knowledge of the entire public for a considerable period of time. The petitioner was shell shocked on hearing these scandals about the respondent.”_ 11. The aforesaid vague averments do not amount to allegation of adultery against the first respondent. The first respondent had eloped with a person or that she was leading a lascivious and libidinous life or a wayward life does not necessarily mean that she has committed adultery. 12. In **Susanta Kumar Mitra v. Himangshu Prova Mitra : AIR 1964 Cal 33** , the Calcutta High Court has observed as follows: _''The learned Judge treats this petition as one under Section 10 of the Indian Divorce Act on the ground of adultery coupled with desertion without reasonable excuse for more than two years. Unfortunately he has failed to notice that the word "adultery" was not even alleged in the petition. Paragraph 5 of the petition says that "the respondent used to bring people into the house and used to pass nights with them". That, in our opinion is not enough assertion and allegation of the actual act of adultery”._ O.P.(FC) No.516/2018 6 13. There is no whisper in the petition for divorce that the wife has committed adultery. There is no averment in the petition for divorce that the wife had sexual intercourse with a man other than the petitioner. 14. At this juncture, we shall examine the basis on which the application for amendment of the petition for divorce was filed by the petitioner. In the affidavit filed by the petitioner in support of the application for amendment, it is stated in the third paragraph that, at the time of filing the original petition the petitioner had mentioned the illicit relationship of his wife with an autorickshaw driver by name Binu Jacob. This averment in the affidavit filed by the petitioner is absolutely incorrect, if not, false. There is no averment in the petition for divorce that the wife of the petitioner had illicit relationship with any person by name Binu Jacob. The prayer for amendment of the petition for divorce and impleading the person by name Binu as additional second respondent was made by the petitioner on the basis that the petition for divorce already contained averments as to the adultery committed by his wife. In fact, the petition for divorce does not contain any averment that the wife of the petitioner committed adultery. In these circumstances, the Family Court was perfectly justified in O.P.(FC) No.516/2018 7 dismissing the applications filed by the petitioner. 15. Amendment of plaint introducing a totally new case cannot be permitted. Amendment can be allowed to elaborate, explain or modify the pleadings. Normally, the right to relief must be judged to exist as on the date a suitor institutes the legal proceeding. The right of a party is determined by the facts as they exist on the date the action is instituted. Where a cause of action is deficient but later events have made up the deficiency, the court may, in order to avoid multiplicity of litigation, permit amendment and continue the proceeding, provided no prejudice is caused to the other side (See Rameshwar v. Jot Ram : AIR 1976 SC 49). The position of law, therefore, seems to be that divorce on the ground of adultery could be allowed to be incorporated in the petition subsequently by amendment provided the ground existed at the time of filing of the petition. 16. In the instant case, the attempt of the petitioner is to seek a relief of divorce on an additional ground of adultery by amendment of the petition for divorce. By amendment of the petition for divorce, the petitioner seeks to introduce a totally new case and new ground for divorce. True, the amendment will not change the nature and character of the suit or the relief. O.P.(FC) No.516/2018 8 But, a totally new cause of action for seeking divorce is sought to be introduced by way of amendment which is not permissible. It is significant that the petitioner has no case that he came to know about the act of adultery allegedly committed by his wife only about two years after the filing of the petition for divorce. 17. In the aforesaid circumstances, we find no ground to interfere with the impugned orders passed by the Family Court. Consequently, we dismiss the Original Petition. (sd/-) ## **C.K.ABDUL REHIM, JUDGE** (sd/-) **R.NARAYANA PISHARADI, JUDGE** jsr/08/10/18 O.P.(FC) No.516/2018 9 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 A TRUE COPY OF THE ORIGINAL PETITION IN O.P.450/2017 ON THE FILES OF FAMILY COURT, THRISSUR. EXHIBIT P2 A TRUE COPY OF THE OBJECTION FILED BY THE FIRST RESPONDENT IN O.P.NO.450/2017. EXHIBIT P3 A TRUE COPY OF THE APPLICATION IN IA.NO.1560/2018 IN O.P.450/2017. EXHIBIT P4 A TRUE COPY OF THE APPLICATION IN IA.NO.1559/2018 IN O.P.450/2017. EXHIBIT P5 A TRUE COPY OF THE OBJECTION FILED IN IA.NO.1560/2018 IN O.P.450/2017 DATED 7.4.2018. EXHIBIT P6 A TRUE COPY OF THE OBJECTION FILED IN IA.NO.1559/2018 IN O.P.450/2017 DATED 7.4.2018. EXHIBIT P7 A CERTIFIED COPY OF THE INTERIM ORDER IN IA.1560/2018 DATED 29.5.2018. EXHIBIT P8 A CERTIFIED COPY OF THE INTERIM ORDER IN IA.1559/2018 DATED 29.5.2018.** **RESPONDENT'S EXHIBITS :** **NIL** **TRUE COPY** **PS TO JUDGE**