Sarojini P v. Manimeghala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR WEDNESDAY, THE 29[TH] DAY OF MARCH 2023 / 8TH CHAITHRA, 1945 OP (FC) NO. 36 OF 2023** **AGAINST THE ORDER DATED 14.10.2022 IN I.A.NOS.6 & 7 OF 2022 IN O.P.NO.320 OF 2017 ON THE FILE OF THE FAMILY** **COURT, KASARAGOD** ## **PETITIONER:** ## **SAROJINI. P** **AGED 59 YEARS, W/O. LATE PERINGETH GOPINATHAN, RESIDING AT GOPISREE, VADAKKUMPADU, CHERUVATHUR, HOSDURG, KASARAGODE, PIN – 671315.** **BY ADVS. U.BALAGANGADHARAN R.PRADEEP KUMAR** ## **RESPONDENTS:** - **1 MANIMEGHALA, D/O. CHITHRALEKHA, RESIDING AT PONNAYI HOUSE, IDACHERI PALLIKKUNNU, PUZHATHY VILLAGE, KANNURKKUNNU, KANNUR, PIN – 670005.** - **2 TAHSILDAR,** **HOSDURG TALUK, HOSDURG, KASARAGODE, PIN – 671315.** **3 CHITHRALEKHA P, D/O. ANANDHAN, RESIDING AT PONNAYI HOUSE, IDACHERI PALLIKKUNNU, PUZHATHY VILLAGE, KANNURKKUNNU, KANNUR, PIN – 670005.** 2 ## O.P.(FC) No.36 of 2023 - **4 GOPISREE PERINGETH,** - **D/O. GOPINATHAN PERINGETH (LATE), RESIDING AT VADAKKUMPADU, CHERUVATHUR, HOSDURG, KASARAGODE, PIN – 671315.** - **5 SOORAJ GOPI PERINGETH,** - **W/O. GOPINATHAN PERINGETH (LATE), RESIDING AT VADAKKUMPADU, CHERUVATHUR, HOSDURG, KASARAGODE, PIN – 671315.** - **6 DISTRICT COLLECTOR, VIDYANAGAR, KASARAGOD, PIN – 671121.** **BY ADVS.** - **R1 & R3 BY M.K.SUMOD MUNDACHALIL KOTTIETH** - **R1 & R3 BY K.R.AVINASH (KUNNATH)** - **R1 & R3 BY ABDUL RAOOF PALLIPATH** - **R1 & R3 BY VIDYA M.K.** - **R2 & R6 BY SMT. DEVISREEGOVERNMENT PLEADER** **THIS OP (FAMILY COURT) HAVING COME UP FOR FINAL HEARING ON 17.03.2023, THE COURT ON 29.03.2023 DELIVERED THE FOLLOWING:** 3 ## O.P.(FC) No.36 of 2023 ## **JUDGMENT** ## P.G. Ajithkumar, J. The Family Court, Kasaragod allowed I.A.Nos.6 and 7 of 2022 filed by respondent Nos.1 and 3 in O.P.No.320 of 2017 as per Ext.P9 order dated 14.10.2022. The petitioner in O.P.No.320 of 2017 has filed this Original Petition under Article 227 of the Constitution of India challenging the said order. 2. On 20.01.2023, notice on admission was directed to be served on the respondents. Further proceedings in O.P.No.320 of 2017 on the file of the Family Court, Kasaragod was stayed initially for a period of one month. The interim order was extended for a further period of one month from 16.02.2023. Despite service of notice, respondents No. 4 and 5 did not choose to appear. The learned Senior Government Pleader appears for respondents 2 and 6. 3. Heard the learned counsel appearing for the petitioner, the learned Government Pleader and the learned counsel appearing for respondents No. 1 and 3. 4. The petitioner filed O.S.No.245 of 2015 before the Munsiff’s Court, Hosdurg seeking a decree declaring that she 4 O.P.(FC) No.36 of 2023 is the legally wedded wife of late Peringeth Gopinathan and her two children were born in their marital relationship. It was later transferred to the Family Court, Kasaragod, where it was renumbered as O.P.No.320 of 2017. Respondent Nos.1 who is respondent No.3 in O.P.No.320 of 2017, filed I.A.No.6 of 2022 seeking amendment of the written statement she had filed in O.P.No.320 of 2017. Respondent No. 3 who is respondent No.1 filed I.A.No. 7 of 2022 seeking amendment of her written statement. Both of them sought leave to amend the written statement in the same manner. What they sought is to correct the date of marriage between Smt.Chitralekha, who filed I.A.No. 7 of 2022 and Peringeth Gopinathan as 22.01.1977, instead of 02.03.1977. It was also sought to add a paragraph explaining how such a mistake had occurred. It is explained in the paragraph proposed to be added that Sri.Gopinathan mistakenly stated the date of his marriage with Smt.Chitralekha in the document executed by him dissolving his marriage with Smt.Chitralekha and that the same mistake was carried in the document submitted before the Guruvayoor Municipality. 5 ## O.P.(FC) No.36 of 2023 5. The petitioner herein, who is the petitioner in O.P.No.320 of 2017, resisted the petitions seeking leave to amend essentially contending that by such amendment admission made by respondent Nos.1 and 3 in their respective written statements concerning the date of marriage of Sri.Gopinathan with Smt.Chitralekha will stand withdrawn. The learned counsel appearing for the petitioner would submit that no amendment amounting to withdrawal of admission in a pleading can be allowed. It was contended that if such an amendment is allowed, it will be prejudicial in the case of the petitioner. The learned counsel accordingly submitted that the Family Court totally went wrong in allowing I.A.Nos.6 and 7 of 2022. 6. The learned counsel appearing for the petitioner placing reliance on the decision in **Heeralal v. Kalyan Mal and others [(1998) 1 SCC 278]** contended that if an amendment in the written statement would amount to going behind of the admission made by the defendant in the written statement, that cannot normally be allowed. 6 ## O.P.(FC) No.36 of 2023 7. The amendment sought by respondent Nos.1 and 3 is that a mistake occurred in stating the date of marriage between Sri.Gopinathan and Smt.Chitralekha in the respective written statements is to be corrected. Applications for amendment were filed before commencement of the trial. The crucial question involved in the litigation is as to the occurrence of the marriage between Sri.Gopinathan and Smt.Chitralekha and its valid dissolution. The date of the marriage has only secondary importance. A correction of the date of the alleged marriage cannot have the effect of withdrawal of any admission. Mentioning of the date of marriage will not amount to an admission of any material fact that would clothe the petitioner with any vested right. 8. In **Life Insurance Corporation of India v. Sanjeev Builders Private Limited and another [AIR 2022 SC 4256]** the Apex Court laid down the parameters for allowing or declining a plea for leave to amend pleadings, which are,- “Our final conclusions may be summed up thus: (i) Order II Rule 2 CPC operates as a bar against a 7 ## O.P.(FC) No.36 of 2023 subsequent suit if the requisite conditions for application thereof are satisfied and the field of amendment of pleadings falls far beyond its purview. The plea of amendment being barred under Order II Rule 2 CPC is, thus, misconceived and hence negatived. (ii) All amendments are to be allowed which are necessary for determining the real question in controversy provided it does not cause injustice or prejudice to the other side. This is mandatory, as is apparent from the use of the word "shall", in the latter part of Order VI Rule 17 of the CPC. (iii) The prayer for amendment is to be allowed (i) if the amendment is required for effective and proper adjudication of the controversy between the parties, and (ii) to avoid multiplicity of proceedings, provided (a) the amendment does not result in injustice to the other side, (b) by the amendment, the parties seeking amendment does not seek to withdraw any clear admission made by the party which confers a right on the other side and (c) the amendment does not raise a time barred claim, resulting in divesting of the other side of a valuable accrued right (in certain situations). (iv) A prayer for amendment is generally required to 8 O.P.(FC) No.36 of 2023 be allowed unless (i) by the amendment, a time barred claim is sought to be introduced, in which case the fact that the claim would be time barred becomes a relevant factor for consideration, (ii) the amendment changes the nature of the suit, (iii) the prayer for amendment is malafide, or (iv) by the amendment, the other side loses a valid defence. (v) In dealing with a prayer for amendment of pleadings, the Court should avoid a hypertechnical approach, and is ordinarily required to be liberal especially where the opposite party can be compensated by costs. (vi) Where the amendment would enable the Court to pin-pointedly consider the dispute and would aid in rendering a more satisfactory decision, the prayer for amendment should be allowed. (vii) Where the amendment merely sought to introduce an additional or a new approach without introducing a time barred cause of action, the amendment is liable to be allowed even after expiry of limitation. (viii) Amendment may be justifiably allowed where it is intended to rectify the absence of material particulars in the plaint. (ix) Delay in applying for amendment alone is not a ground to disallow the prayer. Where the aspect of 9 O.P.(FC) No.36 of 2023 delay is arguable, the prayer for amendment could be allowed and the issue of limitation framed separately for decision. (x) Where the amendment changes the nature of the suit or the cause of action, so as to set up an entirely new case, foreign to the case set up in the plaint, the amendment must be disallowed. Where, however, the amendment sought is only with respect to the relief in the plaint, and is predicated on facts which are already pleaded in the plaint, ordinarily the amendment is required to be allowed. (xi) Where the amendment is sought before commencement of trial, the Court is required to be liberal in its approach. The Court is required to bear in mind the fact that the opposite party would have a chance to meet the case set up in amendment. As such, where the amendment does not result in irreparable prejudice to the opposite party, or divest the opposite party of an advantage which it had secured as a result of an admission by the party seeking amendment, the amendment is required to be allowed. Equally, where the amendment is necessary for the Court to effectively adjudicate on the main issues in controversy between the parties, the amendment should be allowed. (See Vijay Gupta v. Gagninder Kr. Gandhi & Others. [(2022) SCC OnLine Del 1897].” (underline supplied) 10 ## O.P.(FC) No.36 of 2023 9. As mentioned above by correcting the date no right conferred on the petitioner will be taken away. In the light of the law laid down by the Apex Court in the aforesaid decision, we are of the view that the amendment proposed in the written statements filed by respondents No.1 and 3 would not be prejudicial to the interest of the petitioner. What is the correct date of marriage is a matter of evidence at the time of the trial of the case. In such circumstances, we are of the view that the Family Court has rightly allowed interlocutory applications. We find no reason to interfere with the order dated 14.10.2022 in I.A.Nos.6 and 7 of 2022 in O.P.No.320 of 2017, in the exercise of the supervisory jurisdiction of this Court under Article 227 of the Constitution of India. The Original Petition is accordingly dismissed. ## **Sd/-** ## **ANIL K. NARENDRAN, JUDGE** ## **Sd/P.G. AJITHKUMAR, JUDGE** dkr 11 O.P.(FC) No.36 of 2023 ## **APPENDIX OF OP (FC) 36/2023** ## **PETITIONER EXHIBITS** **EXHIBIT P1 A TRUE COPY OF THE OS 245/2015 DATED 4.6.2015 EXHIBIT P2 A TRUE COPY OF THE WRITTEN STATEMENT FILED BY FIRST RESPONDENT DATED 6/2019 EXHIBIT P2 [ A ] A TRUE COPY OF WRITTEN STATEMENT FILED BY THE THIRD RESPONDENT DATED 16.9.2015 IN OS 245/2015 (STANDS RE-NUMBERED AS OS 320/2-17) EXHIBIT P3 A TRUE COPY OF THE MARRIAGE CERTIFICATE RELIED ON BY THE FIRST RESPONDENT DATED 28.3.2019 ISSUED BY GURUVAYOOR MUNICIPALITY** **EXHIBIT P4 A TRUE COPY OF THE LETTER DATED 24.12.2021 ADDRESSED TO FAMILY COURT, KASARGOD FROM THE ARMY MEDICAL CORPS RECORD OFFICE** **EXHIBIT P5 A TRUE COPY OF THE ORDER NO.PAN/4382/2021-B1(DP)/K.DIS DATED 13.5.2022 OF THE CHIEF REGISTRAR OF MARRIAGES** **EXHIBIT P6 A TRUE COPY OF IA 6/2022 FILED BY THIRD RESPONDENT DATED 20.4.2022** **EXHIBIT P7 A TRUE COPY OF IA 7/2022 FOR AMENDMENT FILED BY 1ST RESPONDENT HEREIN DATED 20.4.2022 EXHIBIT P8 A TRUE COPY OBJECTIONS FILED BY THE PETITIONER IN IA 7/2022 DATED 6.5.2022 EXHIBIT P9 A TRUE COPY OF THE COMMON ORDER IN IA 6/2022 AND IA 7/2022 DATED 14.10.2022**