Adding To Marriage Dispute

 

 

 

IN THE judgement of the case – Sandhya Shekhar Zanjare v. Shekhar Suresh Zanjare, delivered on June 9, 2025, Justice Manjusha Deshpande, at the Principal seat of the Bombay High Court at Mumbai, had occasion to deal with the factors to be taken into consideration while dealing with applications for amendment generally and particularly in the matrimonial cases, as the Judge was concerned with in this case. The petitioner-wife from Nashik, had challenged the order passed by the Family Court Judge, Nashik on November 22, 2023, whereby the application for amendment of plaint as provided under Order VI Rule 17 of the Code of Civil Procedure 1908 filed by the respondent-husband was allowed. The couple was married on February 19, 2006. After marriage she started residing with her husband. Because of matrimonial discord, the respondent-husband filed a petition for divorce under section 13(1)(i-a) (i-b) of the Hindu Marriage Act.

 

The divorce proceedings were filed on December 8, 2014. After filing of affidavit in lieu of evidence, the respondent herein filed an application under Order VI Rule 17 of the CPC seeking amendment in the plaint. He wanted to make additions in the pleadings to the effect that. The petitioner was already married, when the respondent married her. He married respondent without obtaining divorce from her husband of previous marriage. It was contended by the respondent-husband that, the fact of earlier marriage of wife was disclosed by her in criminal application No. 302 of 2015, filed by her and she has also admitted in the FIR, which was filed on June 17, 2015, that her marriage with the respondent-husband is her second marriage. The respondent is claiming that he has been cheated, due to suppression of material fact by wife, marriage between them needs to be declared null and void.

 

Accordingly, the respondent was also seeking leave to add prayer clause that the marriage between the petitioner and the respondent on February 19, 2006 should be declared as null and void. This application seeking amendment as per Order VI Rule 17 was filed by the respondent-husband on April 13, 2023. The application was opposed by the wife by filing reply to the application on June 9, 2023. The Judge, Family Court, Nashik had allowed the application filed by the respondent seeking amendment in the plaint through the order of November 22, 2023. It is this order which was under challenge.

 

The HC has quoted from its decision – Revajeetu Builders and Developers v. Narayanaswamy and Sons and others-(2009)10 SCC 84, “the factors to be taken into consideration while dealing with applications for amendments: On critically analyzing both the English and Indian cases, some basic principles emerge which ought to be taken into consideration while allowing or rejecting the application for amendment: (1) Whether the amendment sought is imperative for proper and effective adjudication of the case; (2) whether the application for amendment is bona fide or malafide; (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. These are some of the important factors which may be kept in mind while dealing with application filed under Order VI Rule 17.

 

These are only illustrative and not exhaustive.” Similarly, in a recent decision of the Supreme Court, in case of Basavaraj v. Indira & others –(2024) 3 SCC 705 has observed that, the important factors that needs to be considered are that whether amendment would cause prejudice to the other side; whether it would fundamentally change the nature and character of the cases or a fresh suit or amended claim would be barred on the date of filing of the application. In this case, the respondent herein had filed the petition for dissolution of marriage, whereas by amendment in the plaint, the respondent is seeking to add a prayer, of declaration that their marriage is null and void. If the prayer of the respondent herein is granted, the very nature of suit would change. A liberal approach is adopted by the courts while granting amendment to the pleadings.

 

Albeit, Order VI Rule 17 itself provides that the amendments in the pleadings can be granted at any stage of the suit, however, the proviso makes an exception to the rule. According to the proviso, if the trial has commenced, the amendment is to be allowed only if the party demonstrates that, in spite of due diligence, the party could not have raised the matter before trial commenced. In the judgment of the case- Rajkumar Gurawara v. S K Sarawagi and Company Pvt. Limited & Another– (2008) 14 SCC 364, the object behind the proviso is explained in Paragraph 13 of the judgment. Though the respondent had filed the petition, seeking divorce in the year 2014, the amendment is sought to be made in the year 2023, hence there is a huge delay in approaching the Court seeking amendment. The other ground which disentitles the respondent herein from granting the prayer for amendment in the plaint is that, in the memo of divorce petition itself there is an averment made by the respondent herein that, he got the knowledge of the previous marriage of the petitioner, and that she was not divorced from her first husband, from her relatives, hence she has cheated him, The ground for declaration of the marriage as null and void was very much available to him at the time of filing of petition itself. He did not show any concern at the time of filing the petition. After nine years such application is moved after the trial has commenced.

 

The respondent herein has failed to demonstrate before the trial court that, in spite of due diligence, he could not have raised the issue before the commencement of trial. The phrase “due diligence “has been interpreted in the paragraph -16 of the Supreme Court’s decision- Chander Kanta Bansal v. Rajinder Singh Anand- (2008) 5 SCC 117. The High Court has concluded that in view of the various authoritative judicial pronouncements of the Supreme Court on the interpretation of the Order VI Rule 17 and the ‘due diligence ‘to be demonstrated by the party seeking amendment of pleadings on commencement of trial, the order passed by the Judge, Family Court, Nashik is not legally sustainable. The impugned order has been passed in total disregard to the settled legal position.