K.V.Nithyaprabha v. S.Arulkumar

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 08.09.2023

CORAM:

THE HONOURABLE MR.JUSTICE V.LAKSHMINARAYANAN and C.M.P.Nos.5020 of 2020 & 25604 of 2019 K.V.Nithyaprabha .. Petitioner Vs.

S.Arul Kumar .. Respondent PRAYER: Civil Revision Petition is filed under Article 227 of the Constitution of India, to set aside the fair and decreetal order, dated 05.07.2019, made in I.A.No.1975 of 2018 in O.P.No.940 of 2018 on the file of the IV Additional Family Court, Chennai. For Petitioner : M/s.D.Lakshmipathy For Respondent : Ms.M.Saral for M/s.V.Pushkala 1/6

O R D E R

HMOP.No.136 of 2012 was filed on the ground of cruelty. The allegation was that the petitioner herein used to abuse the respondent/husband in utter, filthy and foul language. It is also alleged that she used to pick up frequent quarrels and fights for absolutely no reason at all. Seeing the strange behavior, the petitioner and the respondent were living separately.

2.The petitioner further states that the character of the respondent did not change and she went back to her original ways of abusing the petitioner. It is alleged that the petitioner was in contact with one Selva Ramesh, a colleague, who was working with her in the IDBI bank before marriage. Therefore, the petitioner had become mentally and physically weak on account of all the circumstances and hence, he filed a petition for divorce on the ground of cruelty. After receipt of the counter, the matter went on for trial.

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3.Pending the proceeding, the petitioner filed I.A.No.83 of 2015 to implead Koteeswaran as a party respondent to the proceeding. The said proceeding ended in favour of the respondent. Challenging the same, CRP(PD)No.3192 of 2016 was filed. When the revision came up for final disposal, the petitioner withdrew I.A.No.83 of 2015 and sought for liberty. The I.A. was dismissed as withdrawn with liberty to file an appropriate petition. Thereafter, the petitioner presented I.A.No.11 of 2016 with two prayers. The first prayer being to include the provision relating to adultery in the divorce petition namely, Section 13(1)(i) of the Hindu Marriage Act, 1955. Apart from that, he wanted to add a separate paragraph as paragraph No.15a. This was opposed by the respondent, but it came to be allowed. Against which, the present civil revision petition has been filed.

4.Heard Mr.D.Lakshmipathy, learned counsel appearing for the petitioner and Ms.Saral, learned counsel for Ms.V.Pushkala, learned counsel appearing for the respondent.

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5.Both sides would agree that when the amendment application was filed, evidence had already been recorded on the merits of the case and it was posted for arguments on the side of the petitioner. 6.Once the parties have gone to trial on averments already made, to bring in fresh allegations by way of an amendment would cause prejudice to other side. Since there are allegations that the petitioner had relationship with one Mr.Selva Ramesh as well as Mr.Koteeswaran in the original application itself, the first part of the prayer alone is allowed. The petitioner is permitted to correct the provision of law from Section 13(1)(i)(a) to Section 13(1)(i)(a) r/w Section 13(1)(i) of the Hindu Marriage Act, 1955. Insofar as the second prayer is concerned, where the petitioner wanted to include fresh averments, the petition will stand dismissed. It is made clear that the parties will not be permitted to let in fresh evidence as the amendment only relates to correction of provision of law.

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7.This civil revision petition is partly allowed. I.A.No.11 of 2017 subsequently re-numbered as I.A.No.1975 of 2018 is allowed insofar as the correction of provision of law alone is concerned. Insofar as the remaining portion, the I.A. will stand dismissed. No costs. Consequently, connected miscellaneous petitions are closed. 08.09.2023 Index:Yes/No Speaking Order :Yes/No MKN 2/VS To The IV Additional Family Court, Chennai.

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V.LAKSHMINARAYANAN,J.

VS/MKN 2 and C.M.P.Nos.5020 of 2020 & 25604 of 2019 08.09.2023 6/6