Skip to content


Edma Satyamma Vs. Edma Gopala Reddy - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtAndhra Pradesh High Court
Decided On
Case NumberCivil Revn. Petn. No. 694 of 1958
Judge
Reported inAIR1961AP122
ActsCode of Civil Procedure (CPC) , 1908 - Order 6, Rule 17; Hindu Marriage Act, 1955 - Sections 9, 10, 10(1), 11, 12, 13, 14, 21 and 26; Hindu Marriage Rules - Rules 2 and 6(2)
AppellantEdma Satyamma
RespondentEdma Gopala Reddy
Advocates:V. Madhva Rao, Adv.
Disposition Revision petition allowed
Excerpt:
family - divorce - sections 10 and 13 of hindu marriage act, 1955 and order 6 rule 17 of code of civil procedure, 1908 - petition for divorce on grounds of cruelty and adultery by husband - amendment application seeking alternative relief of judicial separation - no change in cause of action - amendment application can be allowed - no need to file separate petitions for divorce and judicial separation. - .....petitions have to be filed for the two reliefs claimed under sections 10 (1) and 18 of the act. that it is open to claim alternative relief is dear from rule 6(2). rule 6(2) provides that the petition shall set out at the end the relief or reliefs sought. if in a original petition only one relief can be sought and not an alternative relief, rule 6(2) would be rendered meaningless. i have no doubt in my mind whatsoever that if the necessary allegations have already been made in the original petition, the court has ample jurisdiction to permit the amendment and claim for the alternative relief as is sought for in the present case. 4. the civil revision petition is consequently allowed with costs in this court.
Judgment:
ORDER

Umamaheswaram, J.

1.This is an application to revise the order of the Dist. Judge of Karimnagar in Case No. 19/1 of 1957 refusing to permit the petitioner to amend the petition by including an alternative relief. In the original petition filed by the petitioner, she stated that she was treated cruelly by her husband and that the husband was also guilty of adultery, and that divorce may be ordered. Subsequently, she filed an amendment application requesting the Court to permit her to include the relief of judicial separation, if divorce cannot be granted. The Court below has, in a very laconic order, dismissed the amendment application in the following terms :

'No question of amendment arises in this case as such proceedings under the Act shall be initiated by original petition as per the rules regulating the proceedings under the Hindu Marriage Act, 1955, R.O.C. No. 422/56 B-1, Clause 2.'

2. Under Section 10(1)(b) of the Hindu Marriage Act, 1955, hereinafter referred to as 'the Act', either party to a marriage, whether solemnized before or after the commencement of the Act, may present a petition to the Dist Court praying for a decree for judicial separation on the ground that the other party has treated the petitioner with cruelty as to cause a reasonable apprehension in the mind of the petitioner that it will be harmful or injurious for the petitioner to live with the other party.

Under Section 13(1)(i) of the Act, any marriage solemnized, whether before or after the commencement of the Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree for divorce on the ground that the other party is living in adultery. In the application filed before the Court below, the petitioner has alleged both cruelty as also adultery on the part of the husband, and if she establishes the first allegation that her husband was treating her cruelly, she will be entitled to a decree for judicial separation, and if she proves that the husband is guilty of adultery, she will be entitled to divorce.

When all the necessary allegations are made in the petition, I really feel surprised why the learned Judge refused to allow the amendment application. There is no change in the cause of action. All facts necessary for decreeing judicial separation are contained in the petition. By means of the amendment application, the petitioner only sought to include the alternative relief, namely, the relief of judicial separation, if divorce cannot be ordered. The object of enacting Order VI Rule 17 C.P.C. is to avoid unnecessary multiplicity of proceedings.

Under the wide terms of Order VI Rule l7 C.P.C. the Court may, at any stage of the proceedings, allow either party to alter or amend the pleadings in such manner and on such terms as may be just and all shch amendments shall be made as may be necessary for the purpose of determining the read questions in controversy between the parties. In the instant case, the pleadings are in no way altered.

What is sought to be added by way of amendment is only alternative relief. If the amendment of the plaint by adding a new prayer does not convert the suit into another of a different and inconsistent character it is the duty of the Court to allow the amendment. In my view, the discretion exercised by the Court below in the laconic order referred to supra is perverse and the order ought to be set aside.

3. The learned District Judge appears to have misunderstood Rule 2 of the Rules framed to regulate proceedings under the Hindu Marriage Act of 1955. Rule 2 merely provides how the proceedings under Sections 9, 10, 11, 12, 13 and 26 of the Act should be initiated. The mere fact that in Rule 2 (ii) and Rule 2 (vi) it is provided that proceedings under Sub-section (1) of Section 10 for judicial separation and proceedings under Section 13 for divorce should be initiated by original petition does not mean that two separate petitions have to be filed for the two reliefs claimed under Sections 10 (1) and 18 of the Act.

That it is open to claim alternative relief is dear from Rule 6(2). Rule 6(2) provides that the petition shall set out at the end the relief or reliefs sought. If in a original petition only one relief can be sought and not an alternative relief, Rule 6(2) would be rendered meaningless. I have no doubt in my mind whatsoever that if the necessary allegations have already been made in the original petition, the Court has ample jurisdiction to permit the amendment and claim for the alternative relief as is sought for in the present case.

4. The Civil Revision Petition is consequently allowed with costs in this Court.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //