Y.Ashok, v. Y.Soumya,

THE HON'BLE SRI JUSTICE M.SEETHARAMA MURTI Civil Revision Petition No.1359 of 2017 ORDER:

This Civil Revision Petition, under Article 227 of the Constitution of India, by the unsuccessful respondent is directed against the order, dated 07.03.2017, of the learned Judge, Additional Family Court, Hyderabad, passed in I.A.No.109 of 2017 in O.P.No.1107 of 2013. 2.

I have heard the submissions of Sri V.Hariharan, learned counsel appearing for the petitioner/ husband, and of Sri M.V.S.Suresh Kumar, learned senior counsel appearing for Sri Aravala Sreenivasa Rao, learned counsel appearing for the respondent/ wife.

3.

I have perused the material record.

3.1 The parties shall hereinafter be referred to as petitioner/ husband and respondent/ wife as arrayed in this revision petition for convenience and clarity.

4.

To begin with it is necessary to state the introductory facts, in brief: The respondent herein is the wife of the petitioner. Their marriage was performed on 07.07.1999. The respondent/ wife filed on the file of the Additional Family Court, City Civil Court, Hyderabad, the OP 1107 of 2013 under Section 13 (1) (ia) of the Hindu Marriage Act, 1955, requesting to grant decree dissolving the marriage between her and the petitioner herein, The petitioner/ husband while resisting the said petition made a counter claim and sought a decree for dissolution of marriage between him and the respondent herein and prayed for granting permanent custody of minor daughters, Jahnavi, aged 11 years and Niyati, aged 4 years. He alternatively prayed for granting visitation rights. The respondent herein/ wife filed a rejoinder in answer to the

counter claim made by the petitioner. The respondent/ wife has not pressed her petition on the ground that she had filed separate proceedings at California, USA, for legal separation. She filed a memo to the said effect. The said memo was recorded on 19.01.2017 by the learned Judge of the Additional Family Court and she was accordingly permitted to withdraw her petition. However, the petitioner/ husband is prosecuting his counter claim. The recording of evidence on the side of the petitioner is completed. The Counter claim is coming for adducing the evidence of the respondent. At that stage the petitioner/ husband filed the aforestated application seeking amendment of the counter claim.

4.1 The amendment sought for by the petitioner/ counter claimant reads verbatim as follows:

" For the reasons stated in the accompanying affidavit, the petitioner prays that this Hon'ble court may be pleased to pass an order permitting the petitioner/respondent to amend the counter claim by incorporating the following paragraphs No.i to vi as paragraph Nos.EE (i) to (vi) and paragraph Nos.vii and viii as relief Nos. 'd' & 'e', in the interests of justice and pass such other order or orders as this Hon'ble Court deems fit and proper in the circumstances of the case. i. The respondent submits that after filing of case and leaving this country, the petitioner secured employment in company Apple in City Cupertino, California, USA and as per his information, she has been earning about $200,000/- per annum equivalent to Rs.1,35,00,000/- per annum approximately.

On the other hand, the respondent does not have any earning and he is also being forced to make payment of instalments in respect of the loan contracted by him for purchase of two houses in USA. Most of his savings have already been drained in the process, a portion thereof was snatched away by the petitioner and she has brought him on the roads. ii. The respondent further submits that he had purchased stocks to have as security for future of children, but in view of the present situation he has to sell them for making payment of loan instalments.

huge amount and movable properties with her, which were taken from the house and the banks, while leaving his company. Thus the petitioner is financially very sound and is capable of paying money for his survival.

iii. In these circumstances, it is just and necessary that the Hon'ble Court directs the petitioner to make payment of a sum of Rs.5,00,00,000/- to the respondent towards permanent alimony. As earning of the petitioner are huge and as the respondent does not have any earning presently, it is required that the petitioner is directed to pay permanent alimony to the respondent for his survival and other needs, befitting her status as an Apple employee. If the petitioner is not directed to pay permanent alimony to the respondent, he would suffer heavy loss and injury. iv. The respondent also submits that he purchased two houses in U.S.A., one bearing No.#3910, River bend Terrace, Fremont, CA 94555 and No.# 1915, Center Avenue, Martinez, CA 94553, during the subsistence of the marriage with the petitioner by contracting loans.

The respondent purchased the houses with money from various sources and financial institutions and also from few funds received as gifts /presentations by both the parties at the time of and subsequent to the marriage. In fact, the respondent has been paying the loan instalments to the financial institutions and the same has been continuing. Though major portion of sale consideration is contributed by him, but still the petitioner claims a share in it. v.

The respondent submits that in view of the proceedings relating to dissolution of marriage between the parties is pending before this Hon'ble Court, it is required that even the properties are also settled between the parties to put an end to the litigation and to close all the proceedings between the parties including the proceedings and the disputes relating to any maintenance, alimony, properties, etc. Thus, it is just and necessary that while disposing off the present case, this Hon'ble Court passes decree in respect of global properties also and also of permanent alimony in respect of which a separate application is filed by the respondent.

vi. The respondent further submits that subsequent to filing of this case by the petitioner and his counter claim, in order to subject him to further harassment and other difficulties, the petitioner approached the court in U.S.A seeking various reliefs, but, after his bringing to the notice of said Court about pendency of the present case before this Hon'ble Court and the issues thereof, the said Court is not inclined to take up the matter as the same may lead to

difference of opinion and multiplicity of proceedings. The respondent had been expecting the petitioner to cool down for the future of the children and to patch up the differences, but she is bent upon to trouble him as she has to lead life with her boy friend and hence the respondent lost all hopes of reunion. vii. It is further prayed that the Hon'ble Court may be pleased to pass decree holding that the two houses in USA, one bearing No.#3910, River bend Terrace, Fremont, CA 94555 and No.# 1915, Center Avenue, Martinez, CA 94553, were purchased by the respondent during the subsistence of the marriage with the petitioner by contracting loans from financial institutions, contributing on his own and from his earnings and also from few funds received as gifts/presentations by both the parties at the time of and subsequent to the marriage and hence he is entitled to hold them as owner, in the interest of justice and pass such other order or orders as this Hon'ble Court deems fit and proper in the circumstances of the case. viii.

It is also prayed that the Hon'ble Court may be pleased to pass decree directing the petitioner Smt. Y.Soumya, [that is, respondent herein], to pay to the respondent Sri Y.Ashok, [that is, the petitioner herein], a sum of Rs.5,00,00,000/- as permanent alimony, in the interest of justice and pass such other order or orders as this Hon'ble Court deems fit and proper in the circumstances of the case." 4.2 The respondent/ wife filed a counter and resisted the petition filed by the petitioner for amendment of the counter claim. 4.3 On merits and by the order impugned in the revision, the learned Judge of the Additional Family Court, Hyderabad, dismissed the said petition. Therefore the petitioner/ husband is before this Court. 5.

The case of the petitioner in support of his request for permission to amend the counter claim is as follows:

Having realized that the respondent/ wife has no case and that she has to face serious consequences while deposing in the matter, she has withdrawn her petition. Further, the Court insisted for her presence and gave a direction for taking up the case on day to day basis. Having no other way, the

respondent/ wife has withdrawn her petition. But, the petitioner is continuing to prosecute his counter claim. She secured employment in Apple Company, in Cupertino, California, USA, and is earning $2000,000 per annum equivalent to Rs.1,35,00,000/ - per annum as per the information of this petitioner. The petitioner has no earnings and on the other hand he is paying the installments in respect of the loan contracted by the petitioner for purchase of two houses in USA. Most of the savings have been drained already and a portion thereof has been snatched away by the respondent and she has dragged the petitioner on to road. He purchased stocks for the future of the children. He sold the same for making payments of installments. He is not left with liquid cash.

She has been making good amount; she is already having huge amount and movable properties, which she has taken away from the house and banks while she was in the company of the petitioner. The two houses in USA, one bearing No.#3910, River bend Terrace, Fremont, CA 94555 and another with No.# 1915, Center Avenue, Martinez, CA 94553, were purchased by the petitioner during the subsistence of the marriage with the respondent by contracting loans from financial institutions and contributions of his own and from his earnings and also from few funds received as gifts/ presentations by both the parties at the time of and subsequent to the marriage. And, hence he is entitled to hold them as owner. He is continuing to pay the instalments to the financial institutions.

Though major portion of the sale consideration was contributed by the petitioner, the respondent is claiming a share in the same. To subject the petitioner to further difficulties, the respondent approached the Court at USA. After the petitioner brought to the notice of the said Court about the pendency of the present matter, the said Court was not inclined to take up the matter before it. This petitioner expected the respondent to cool down keeping in view the future of the children and patch up the differences.

boy friend. The petitioner lost all hopes. To put an end to the litigation and close all the proceedings between the parties, including the proceedings relating to maintenance, alimony, properties etcetera, it is just and necessary to pass a decree in respect of global properties and also permanent alimony while disposing of the counter claim of the petitioner. Hence, it has become necessary to seek amendment of the counter claim. Despite being very diligent he could not seek amendment of the counter claim earlier. He could not seek the amendment earlier as the case in USA was not heard till recently. The reliefs being claimed by way of proposed amendment are of prime nature and require a decision of the Court. If the amendment sought for is not permitted, the petitioner suffers serious loss.

6.

The case of the respondent as stated in the counter filed by her GPA holder, in brief, is as follows: 'The petitioner did not claim Rs.42,00,000/ -as withdrawn from investments. The allegations made in the counter claim as well as in the affidavit filed in support of the present petition are false and concocted. The OP was instituted in the year 2013. The petitioner herein is also gainfully engaged in USA in the year 2013. The Court proceedings show that the petitioner/ husband seldom attended the proceedings till April, 2016. The petitioner was not present before the Additional Family Court on many occasions. He was present not more than five or six times. He falsely alleged that he was occupied in pursuing the case. The petitioner is gainfully engaged all the time. This respondent and her daughters are citizens of USA.

The allegations that he was robbed of all valuables lying in home and in locker and also the amounts in bank are false. The said allegations are made for the first time. The material particulars of the said allegations are not furnished. The petitioner/ husband is least bothered about the welfare of the children. He did not spend a single paisa on the education of the children.

false. This respondent came to India unable to bear the physical and mental torture of the petitioner herein. She stayed in her parents' house at Hyderabad to find some solace. The petitioner herein is so insensitive to the future of his children. The petitioner herein is conscious of the fact that denial of renewal of the passport impairs the educational prospects of the children. He refused to sign the application for renewal of the passport of the younger daughter with an intention to prevent this respondent and children from going to USA. This respondent was advised by the Embassy of USA that an order from judicial authority is required for the renewal of the passport. The petitioner and respondent acquired two residential houses in USA.

As per the laws of California, properties acquired by spouses during the subsistence of marriage are liable for partition between them equally by virtue of 'LEX SITUS'. The Courts at California are competent to deal with the property. This respondent is a citizen of USA. She is also residing there with a clear intention to have permanent residence at USA. The petitioner to avoid parting of joint properties with respondent came down to India on the pretext of starting a business. His real mala fide and dishonest intention is to circumvent the proceedings before the Court at California. The Court at California is having jurisdiction to adjudicate the disputes between the parties. Even the petitioner is a Green Card Holder and permanent resident and the respondent is a citizen of USA by virtue of 'LEX DOMICILE'.

The allegations about the earnings of the respondent are false. She is only earning $50,000 (after deduction of taxes etcetera). She has to bear the expenses on house rent, groceries, children's education, medical insurance etcetera. She is unable to save anything from out of her income. The petitioner has no earnings according to him. The petitioner let out two houses in USA on a monthly rent of $ 5,000 each and thus earning a sum of $10,000 per month on rents. He has substantial properties which are worth Rs.25 Crores.

book shares @ $135 per each share. The total value of such shares is $13,50,000, which is equivalent to Rs.9,04,50,000/ -. The petitioner purchased Ac.4.26 guntas of land in Sy.No.203/ AA1 situated at Nadenur village, Kandukur Mandal of Ranga Reddy District, with the joint funds of the petitioner and respondent, under registered sale deed, dated 28.04.2006. The petitioner purchased an extent of Ac.2.14 guntas of land in Sy.No.194 situated at Nadenur village, by virtue of registered sale deed, dated 28.04.2006, with the joint funds of the petitioner and the respondent. The petitioner is the Managing Director of Janvi Soft Private Limited. His bank balance is more than Rs.10,00,000/ - as on 31.07.2014. The petitioner invested Rs.

40,00,000/ - from joint funds to purchase a 3 BHK Flat in the name of petitioner and respondent in Orange country and the same was withdrawn and retained by him. He purchased an extent of Ac.5.00 guntas of land with the joint funds of petitioner and respondent in Chinagudam of West Godavari District for his mother under a registered sale deed. He is having some other substantial properties. The houses at USA are purchased jointly by both the parties and are in the joint names of both the parties. The petitioner alone misappropriated the rents. He disposed of Mercedes Benz and another BMW car in USA and appropriated the sale proceeds. The petitioner sold stocks for making payment of installments is incorrect. He did not give any particulars of the stocks sold and the amounts realized.

He has sufficient income, bank balances and shares/ stocks apart from ancestral properties in his native village. The application for amendment filed after commencement of cross-examination of PW1 without assigning any valid reasons for the delay is not maintainable and is liable for dismissal.' 7.

While reiterating the pleaded case, the learned counsel for the petitioner submitted as follows:

The impugned order of the Court below is illegal, contrary to law, facts, weight of evidence and probabilities of the case. The Court below failed to

appreciate that both parties in their pleadings have clearly and categorically pleaded and prayed for passing of a decree of dissolution of marriage and further reliefs. The respondent herein had filed a rejoinder to the counter claim and once again prayed for dissolution of the marriage and for permanent alimony, by way of additional prayer. The additional prayer thus enlarged the scope of enquiry as a consequence. In the circumstances, the petitioner had filed I.A.No.404 of 2015 on the file of the Additional Family Court, Hyderabad, praying for passing a decree of divorce as admitted by both parties. The respondent went on dragging the issue, though she informed the Court that she has no objection if a decree of divorce is granted. On 20.07.2015, he came up with an offer to give Rs.30,00,000/ - as permanent alimony and Rs.

15 lakhs to each of the daughters. Since the respondent showed consent for resolution of the dispute, he brought the demand drafts for the said amounts. However, the respondent went back and the learned Judge of the Family Court also encouraged that the amount be increased and issues resolved. On 28.12.2015, the respondent herein stated that a decree could be passed but took an objection that since on the earlier occasion when the matter was called, the Family Court was pleaded to counsel both the parties to resolve the issues amicably and considering all the issues suggested that an amount of Rs.50 lakhs to the respondent herein and Rs.20 lakhs to each of the two daughters of the parties be paid, as demanded by the respondent and close the matter.

The petitioner had apprehension about raising such huge amount in the present state of affairs. With great difficulty he had already offered to pay Rs.60 lakhs in all. Hence, he could not give consent to such proposals beyond Rs.60 lakhs. The application for divorce was reserved for orders and the application for permanent alimony was posted to 22.2.2016 for enquiry.

passed by the Court below on 18.01.2017. The Court below erred in observing that the proceedings initiated by the respondent herein before the Court at USA are different from the present proceedings and that there is no nexus. Viewed from any angle, the impugned order of the Court below is arbitrary, unjust and unsustainable in law and therefore, the same is liable to be set aside.

8.

Learned senior counsel appearing for the respondent/ wife, while supporting the orders of the Court below, submitted as follows: In the respondent's/ wife's petition, the petitioner/ husband filed a counter claim. The OP is of the year 2013. In the circumstances she was placed, the wife has withdrawn her petition. However, the petitioner/ husband is prosecuting his counter claim. The matter is part-heard and the trial is in progress. At a belated stage, the application for amendment of the counter claim was filed. The delay in seeking the amendment is not explained.

The learned Judge of the Additional Family Court rightly held that there is absence of diligence on the part of the petitioner/ counter claimant and that the delay in seeking the amendment of the counter claim is not explained and that allowing the amendment would relegate the matter to the initial stages and therefore, the amendment cannot be permitted. By way of the proposed amendment, the petitioner/ counter claimant intends to introduce and claim two further reliefs, namely, his entitlement to hold as owner, the two houses acquired in USA; and, permanent alimony in a sum of Rs.5,00,00,000/ -. The proceedings initiated by the respondent/ wife in a Court at USA and the present proceedings have no nexus, is one of the observations of the learned Judge of the Additional Family Court.

Further, as noted in the orders under revision, there is a direction by this Court to dispose of the main OP on day-to-day basis and if the amendment is permitted, it would delay the disposal of the counter claim of the respondent.

alimony can be claimed at a later stage if the facts and law permit the petitioner/ husband to make such a claim. There is no need to seek amendment of the counter claim during the time when the trial is in progress. Further, admittedly, the house properties are situated in USA, beyond the territory of this country and the territorial jurisdiction of the Additional Family Court. Therefore, the proposed amendments cannot be permitted. The learned Judge of the Additional Family Court is justified in dismissing the petition. The revision petition is devoid of merit. 9.

Before proceeding further, to know the reasons assigned by the Additional Family Court, it is necessary to refer to the relevant/ operative portion of the order, which reads verbatim as under: " .......If the present petition is allowed again the OP would come to initial stage which cannot be permitted under law. On this ground alone petition is liable to be dismissed.

Even otherwise, there are no merits in this petition. As per the proposed amendment petitioner wants to add certain paragraphs relating to the cases filed by the respondent herein in Court at U.S.A besides seeking to incorporate relief of permanent alimony of Rs.5 Crores. Petitioner has come up with present petition only after the petitioner in the main O.P has withdrawn the main O.P. No grounds are mentioned by petitioner herein for the delay in filing the present petition. Moreover, the proceedings initiated by respondent herein in Court at U.S.A are different from the proceedings in the main O.P. They have no nexus to each other.

There is another ground to dismiss this petition.

C.R.P.No.5811/2016 was filed by petitioner herein in Hon'ble High Court. By order dated 14-12-2016 in C.R.P.No.5811/2016 the Hon'ble High Court has directed this Court to dispose of main O.P by taking up the matter on day to day basis from 18-1-2017. While the OP is being taken up as per the directions of Hon'ble High Court this petition has been filed. If the present petition is allowed it would result in further delay in disposal of main O.P. Judging from any angle, Court finds no merit in this petition. Petition is accordingly dismissed. No costs."

10.

Learned counsel appearing for the petitioner/ husband placed reliance on the following decisions: (i) Chakreshwari Construction Private Ltd. V. Manohar Lal1; and (ii) Mahila Ramakali Devi v. Nandram (Dead) through L.Rs and others2. In Charkreshwari's case (1 supra), the following basic principles, which emerge and which ought to be taken into consideration while allowing or rejecting the application for amendment, have been laid down:

(1) Whether the amendment sought is imperative for proper and effective adjudication of the case;

(2) Whether the application for amendment is a bona fide or mala fide?

(3) The amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money;

(4) Refusing amendment would in fact lead to injustice or lead to multiple litigation;

(5) Whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case; and

(6) As a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application.

In Mahila Ramakali Devi (2 supra), the Supreme Court held as follows: " It is well settled that rules of procedure are intended to be a handmaid to the administration of justice. A party cannot be refused just relief merely because of some mistake, negligence, inadvertence or even infraction of rules of procedure. The court always gives relief to amend the pleadings of the party, unless it is satisfied that the party applying was acting mala fide or that by his blunder he had caused injury to his opponent which cannot be compensated for by an order of cost.

In Ishwardas v. State of MP3, the Supreme Court observed as follows: " There is no impediment or bar against an appellate court permitting amendment of pleadings so as to enable a party to raise a new plea. All that is necessary is that the appellate court 1 (2017) 5 Supreme Court Cases 212 2 (2015) 13 Supreme Court Cases 132 3 (1979) 4 SCC 163

should observe the well-known principles subject to which amendments of pleadings are usually granted. Naturally one of the circumstances which will be taken into consideration before an amendment is granted is the delay in making the application seeking such amendment and, if made at the appellate stage, the reason why it was not sought in the trial Court. If the necessary material on which the plea arising from the amendment may be decided is already there, the amendment may be more readily granted than otherwise. But, there is no prohibition against an appellate Court permitting an amendment at the appellate stage merely because the necessary material is not already before the trial Court."

11.

There is no dispute broadly on the facts relevant for consideration in this application and also the legal position obtaining. I have given earnest consideration to the facts and submissions.

12.

It is to be first noted that the reliefs in the original petition of the respondent/ wife and the counter claim of the petitioner/ husband are claimed as per the provisions of the Hindu Marriage Act, 1955. The reliefs claimed in the counter claim are already stated supra. In the counter claim, the petitioner/ husband sought a decree for dissolution of the marriage and also the reliefs in regard to custody of the minor daughters. Now, he wants to seek by way of proposed amendment, the relief of permanent alimony apart from the relief with regard to his entitlement to hold the two houses situate in USA as owner thereof.

12.1 Dealing first with the aspect of according permission for amendment of the counter claim insofar as the relief of permanent alimony, it is trite to refer to Section 25 of the Hindu Marriage Act, which reads as under: Permanent alimony and maintenance:- (1) Any Court exercising jurisdiction under this Act may, at the time of passing any decree or at any time subsequent thereto, on application made to it for the purpose by either the wife or the husband, as the case may be, order that the

respondent shall pay to the application for her or his maintenance and support such gross sum or such monthly or periodical sum for a term not exceeding the life of the applicant as, having regard to the respondent's own income and other property of the applicant[the conduct of the parties and other circumstances of the case], it may seem to the court to be just, and any such payment may be secured, if necessary, by a charge on the immovable property of the respondent.

(2) If the Court is satisfied that there is a change in the circumstances of either party at any time after it has made an order under sub-section (1), it may at the instance of either party, vary, modify or rescind any such order in such manner as the Court may deem just. (3) If the Court is satisfied that the party in whose favour an order has been made under this Section has re-married or, if such party is the wife, that she has not remained chaste, or, if such party is the husband, that he has had sexual intercourse with any woman outside the wedlock [it may at the instance of the other party vary, modify or rescind any such order in such manner as the court may deem just].

A plain reading of the provision makes it manifest that this relief of permanent alimony can be claimed by the wife or the husband, as the case may be, by making an appropriate application at any time and even at the time of passing of any decree or at any time subsequent thereto and the Court is empowered to order the answering respondent to pay to the applicant a gross sum or monthly or periodical sum for a term not exceeding the life of the applicant, however, keeping in view the answering respondent's income and other property besides the other facts and circumstances of the case. Therefore, there are no impediments to allow the amendment of the counter claim insofar as this relief of permanent alimony.

In fact, the submissions made on behalf of the respondent/ wife would only indicate that there is no need for amendment at this stage and the claim in the above regard can be made at a later stage also by the petitioner/ husband, if the facts of the case so warrant. Viewed thus, this Court finds that the amendment insofar as the relief of permanent alimony and the pleadings related thereto can be permitted even at this stage.

12.2 Dealing next with the request for amendment of the counter claim insofar as the two houses situate in USA, it is to be noted that the case of the petitioner/ counter claimant is that the parties are litigating since a long time and there is no hope of reunion and therefore, it is just and necessary to put an end to the litigation and close all the proceedings between the parties including the proceedings relating to maintenance, alimony, property etcetera and to pass a comprehensive decree in the present proceeding itself while disposing of the counter claim of the petitioner, as such a course would not only meet the ends of justice but would also help in resolving the disputes between the spouses and in giving a quietus to the lis once and for all.

The objection of the respondent/ wife for permitting the amendment is based on two grounds; viz., delay and jurisdiction. As admittedly the case is at the stage of trial and as the house properties are situated at USA, the wife contends that the amendment cannot be permitted. The Family Courts Act, 1984, is passed with avowed objectives. Its functioning is different from that of a Civil Court because the procedure of Civil Procedure Code, 1908, and principles of Indian Evidence Act, 1872 are not strictly adhered to and disputes are settled by way of conciliation and Family Court's own simplified procedure. [See: Section 10 of the Family Courts Act, 1984]4. Though the territorial jurisdiction of the Family 4 Section 10. Procedure generally.

(1) Subject to the other provisions of this Act and the rules, the provisions of the Code of Civil Procedure, 1908 (5 of 1908) and of any other law for the time being in force shall apply to the suits and proceedings [other than the proceedings under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974)] before a Family Court and for the purposes of the said provisions of the Code, a Family Court shall be deemed to be a civil court and shall have all the powers of such court. -(1) Subject to the other provisions of this Act and the rules, the provisions of the Code of Civil Procedure, 1908 (5 of 1908) and of any other law for the time being in force shall apply to the suits and proceedings [other than the proceedings under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974)] before a Family Court and for the purposes of the said provisions of the Code, a Family Court shall be deemed to be a civil court and shall have all the powers of such court."

(2) Subject to the other provisions of this Act and the rules, the provisions of the Code of Criminal Procedure, 1973 (2 of 1974) or the rules made thereunder, shall apply to the proceedings under Chapter IX of that Code before a Family Court.

(3) Nothing in sub-section (1) or sub-section (2) shall prevent a Family Court from laying down its own procedure with a view to arrive at a settlement in respect of the subject-matter of the suit or proceedings or at the truth of the facts alleged by the one party and denied by the other.

Courts is limited to that of a District Court and the Family Court can exercise all the jurisdiction exercisable by any District Court or any subordinate Civil Court under any law for the time being in force and the Family Court is deemed to be a District Court for the purpose of exercising jurisdiction, the Family Court while resolving matrimonial matters can deal with a suit or proceeding between the parties to a marriage with respect to the properties of the parties or of either of them. [See: Sections 7 & 8 of the Family Courts Act] 5. 13.

Be that as it may, this Court need not record a finding on merits of the jurisdictional issue at this stage as the law is well settled that while considering the issue as to whether an amendment of a pleading should be permitted, the Court is not required to examine the merits of the proposed amendment and the jurisdictional issue, which arises in case the amendment is 5 Sec. 7. Jurisdiction.

-(1) Subject to the other provisions of this Act, a Family Court shall- (a) have and exercise all the jurisdiction exercisable by any district court or any subordinate civil court under any law for the time being in force in respect of suits and proceedings of the nature referred to in the Explanation; and (b) be deemed, for the purposes of exercising such jurisdiction under such law, to be a district court or, as the case may be, such subordinate civil court for the area to which the jurisdiction of the Family Court extends. Explanation.

-The suits and proceedings referred to in this sub-section are suits and proceedings of the following nature, namely:- (a) a suit or proceeding between the parties to a marriage for a decree of nullity of marriage (declaring the marriage to be null and void or, as the case may be, annulling the marriage) or restitution of conjugal rights or judicial separation or dissolution of marriage; (b) a suit or proceeding for a declaration as to the validity of a marriage or as to the matrimonial status of any person; (c) a suit or proceeding between the parties to a marriage with respect to the property of the parties or of either of them; (d) a suit or proceeding for an order or injunction in circumstance arising out of a marital relationship; (e) a suit or proceeding for a declaration as to the legitimacy of any person; (f) a suit or proceeding for maintenance; (g) a suit or proceeding in relation to the guardianship of the person or the custody of, or access to, any minor.

(2) Subject to the other provisions of this Act, a Family Court shall also have and exercise- (a) the jurisdiction exercisable by a Magistrate of the first class under Chapter IX (relating to order for maintenance of wife, children and parents) of the Code of Criminal Procedure, 1973 (2 of 1974); and (b) such other jurisdiction as may be conferred on it by any other enactment. Sec. 8. Exclusion of jurisdiction and pending proceedings.

-Where a Family Court has been established for any area,- (a) no district court or any subordinate civil court referred to in subsection (1) of section 7 shall, in relation to such area, have or exercise any jurisdiction in respect of any suit or proceeding of the nature referred to in the Explanation to that subsection; (b) no magistrate shall, in relation to such area, have or exercise any jurisdiction or powers under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974); (c) every suit or proceeding of the nature referred to in the Explanation to sub-section (1) of section 7 and every proceeding under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974),- (i) which is pending immediately before the establishment of such Family Court before any district court or subordinate court referred to in that sub-section or, as the case may be, before any magistrate under the said Code; and (ii) which would have been required to be instituted or taken before such Family Court if, before the date on which such suit or proceeding was instituted or taken, this Act had come into force and such Family Court had been established, shall stand transferred to such Family Court on the date on which it is established.

allowed, as the said aspects have to be examined at an appropriate later stage but not while considering the request for amendment of the pleading. Further, jurisdiction of a Family Court including a Court in a foreign country depends upon submission of the parties to the Court's jurisdiction. Therefore, amendment can be permitted leaving open the question with regard to the jurisdiction of the Family Court to deal with the claim with regard to the two houses situated in USA. Further, in the decision in Abdul Rehman and Another v. Mohd.

Ruldu and Others6, the Supreme Court, having taken note of the provision of law in the Code had laid down that it is clear that the parties to the suit are permitted to bring forward amendment of the pleadings at any stage of the proceeding for the purpose of determining the real question in controversy between them and that the Courts have to be liberal in accepting the same, if such application for amendment is made prior to the commencement of the trial and that if such application is made after the commencement of the trial, in that event, the Court has to arrive at a conclusion that, in spite of due diligence, the party could not have raised the matter before the commencement of the trial.

In the above decision the Hon'ble Supreme Court reiterated the following proposition: " All amendments which are necessary for the purpose of determining real questions of controversy between the parties should be allowed if it does not change the basic nature of the suit. A change in the nature of relief claimed shall not be considered as a change in the nature of suit and the power of amendment should be exercised in the larger interests of doing full and complete justice between the parties."

In the above decision the Hon'ble Supreme Court further referred to the ratio in the decision in Pankaja and another v. Yellapa7 which runs as follows: " If the granting of amendment really sub-serves the ultimate cause of justice and avoids further litigation, the same should be allowed."

6 2013(1)ALD 1(SC) 7 AIR 2004 SC 4102

As rightly contended, the Court's jurisdiction to allow amendment of the pleadings is wide enough to permit amendments even in cases, where there has been substantial delay in seeking amendments. The question as to whether amendment of the pleading should be permitted or not depends largely on the facts and circumstances of each case and the discretionary jurisdiction to allow or not to allow an amendment will have to be exercised on a judicious evaluation of the facts and circumstances in which the amendment is sought and there can be no straight jacket formula for allowing or disallowing amendment of the pleadings and each case depends upon the factual background of that case.

The amendment sought for by the petitioner/ counter clamant, if permitted, neither would introduce a fundamental or constitutional change in the nature and character of the counter claim nor would change its frame. Applying the settled legal principles, this Court finds that it is a fit case where the jurisdictional fact as envisaged in the proviso appended to Order VI Rule 17 of the Code exists and, that therefore, this Court could exercise the jurisdiction to allow the amendment.

On an earnest consideration of facts and law, it emerges that the amendment sought is imperative for proper and effective adjudication of the lis and that the application for amendment is bona fide and that the refusal of the amendment would lead to injustice and that on the other hand the allowing of the amendment does not cause any prejudice to the respondent/ wife, who is working in USA and is being represented by her GPA holder. Viewed thus, this Court finds that the refusal to permit the amendment on the ground of delay would not be just and fair, in the facts and circumstances of the case.

14.

As a sequel to the detailed discussion coupled with reasons, this Court holds that the application seeking amendment of the counter claim deserves to be allowed and that therefore, the order impugned, which suffers from infirmities, calls for interference.

15.

On the above analysis, this Court finds that the request of the petitioner/ counter claimant in the application for amendment merits consideration and therefore, the said application deserves to be allowed after setting aside the orders impugned in this revision. 16.

In the result, the Civil Revision Petition is allowed. As a sequel, order, dated 07.03.2017, of the learned Judge, Additional Family Court, Hyderabad, passed in I.A.No.109 of 2017 in O.P.No.1107 of 2013 is set aside and the said IA is allowed. There shall be no order as to costs. Pending miscellaneous petitions, if any, in this revision shall stand closed. _____________________ M. SEETHARAMA MURTI, J 29.08.2017 RAR