Savitha v. Sivadasan

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.HARILAL** **&** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **THURSDAY, THE 05TH DAY OF MARCH 2020 / 15TH PHALGUNA, 1941** ## **OP (FC).No.135 OF 2020** **AGAINST THE ORDER/JUDGMENT IN OP 29/2017 DATED 09-01-2020 OF FAMILY COURT, MALAPPURAM** **PETITIONER/S:** **SAVITHA AGED 31 YEARS D/O.RAMACHANDRAN (LATE), PARAYIL VEEDU, PERINTHALMANNA P.O., PERINTHALMANNA TALUK, PERINTHALMANNA AMSOM, MATTUNGAL DESOM, PERINTHALMANNA TALUK, MALAPPURAM DISTRICT.** **BY ADV. SRI.R.RANJITH (MANJERI)** **RESPONDENT/S:** **SIVADASAN AGED 35 YEARS S/O.KUMARAN, KOORIKKATTIL HOUSE, AALIPARAMB P.O., AALIPARAMB AMSOM DESOM, PERINTHALMANNA TALUK, MALAPPURAM DISTRICT.** **THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON 05.03.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **OP (FC).No.135 OF 2020** **==> picture [18 x 7] intentionally omitted <==** ## **JUDGMENT** ## **Dated this the 5th day of March, 2020** ## **K.Harilal, J** The petitioner herein is the respondent in O.P.No.29 of 2017 on the files of the Family Court, Malappuram. She is the wife of the respondent herein. The respondent herein had filed O.P.No.29 of 2017 seeking a decree for dissolution of marriage under Section 139(i)(ia) of the Hindu Marriage Act. According to the respondent, they have no children in the wedlock so far and they have undergone treatment in various hospitals for infertility. Then the Doctor revealed to him that the petitioner has no uterus and she could not conceive. This was shocking to him. Subsequently, the said opinion was got **OP (FC).No.135 OF 2020** **==> picture [17 x 9] intentionally omitted <==** confirmed by the Doctor in a specialty hospital, Thrissur. The petitioner had concealed her inability to conceive. 2. The petitioner herein filed a counter statement at first admitting that her uterus is defective. Further, she admitted that the defect of uterus is a congenital disorder, which was detected only one year after the marriage, when the petitioner and the respondent together had consulted a doctor. Now the petitioner herein filed an application to amend the counter statement and in that application she has prayed for deleting the aforesaid admission and she wants to substantiate certain paragraphs stating that even before marriage her congenital disorder of uterus was revealed to the respondent and he married her with full knowledge of the same. ## **OP (FC).No.135 OF 2020** **==> picture [18 x 9] intentionally omitted <==** 3. The respondent herein opposed the said application seeking amendment of the counter statement contending that, the petitioner herein wants to take away the admission made in the original counter statement and she should not be permitted to do so. The counsel for the respondent has cited the decision of the Supreme Court in _**Ram Niranjan Kajaria v. Sheo Prakash Kajaria**_ [(2015) 10 SCC 203]. 4. After considering the rival pleas as cited above, the Family Court rejected the application filed by the petitioner herein on a finding that the petitioner cannot be allowed to take away the admissions made earlier in the counter statement by way of an amendment. The legality and correctness of the said order is under challenge in this Original Petition. 5. Admittedly, in the counter statement, the petitioner has stated that the congenital disorder of her **OP (FC).No.135 OF 2020** **==> picture [17 x 8] intentionally omitted <==** uterus was detected only one year after the marriage, when the petitioner and the respondent together had consulted a doctor. Now she wants to incorporate certain paragraphs contending that even before the marriage her congenital disorder was revealed to the husband/respondent and he married her with the full knowledge of her congenital disorder of uterus and in spite of knowing it, he insisted her for marrying him. According to her, the respondent married her with the full knowledge that she would never conceive. 6. On an analysis of the existing pleadings, we find that the existing pleading is an admission in the counter made in judicial proceedings. Now she wants to substitute another contention, which would nullify the earlier admission. Thus, the existing admission and the amendment, which is sought to be introduced are mutually destructive. It is trite law settled by the decision ## **OP (FC).No.135 OF 2020** ..6.. of the Supreme Court in _**Ram Niranjan Kajaria v. Sheo Prakash Kajaria and Others**_ [ **(2015) 10 SCC 203** ] that the categorical admission made in the pleadings cannot be permitted to be withdrawn by way of amendment. The parties cannot be allowed to resile from the earlier admission made in the pleadings. 7. In the light of the decision referred above, we also find that the court below is justified in rejecting the application seeking amendment. 8. Moreover, the amendment is hit by the proviso to Order VI Rule 17 of the Code of Civil Procedure also. Now the chief examination of the respondent is over. If the trial has commenced, the proviso will come into application. What is sought to be amended is a matter within the knowledge of the petitioner. Therefore, it cannot be held that despite due diligence, the said amendment could not have been introduced earlier in the **OP (FC).No.135 OF 2020** **==> picture [17 x 8] intentionally omitted <==** counter statement. Thus the amendment is hit by the proviso to Order VI Rule 17 of CPC. The O.P.(FC) would stand dismissed. Sd/- **K.HARILAL, JUDGE** Sd/- **C.S.DIAS, JUDGE** kkj **OP (FC).No.135 OF 2020** ..8.. ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE AMENDMENT PETITION IN O.P.NO.29/2017 OF THE FAMILY COURT, MALAPPURAM DATED 29.11.2019. EXHIBIT P2 TRUE COPY OF THE ORDER IN I.A.NO.1695/2019 IN O.P.NO.29/2017 OF THE FAMILY COURT, MALAPPURAM DATED 9.1.2020.**