Spouse Can't Amend Pleadings To Seek Restitution Of Conjugal Rights After 10 Years Into Divorce Case, Dilatory Tactics: Allahabad High Court

The Allahabad High Court has held that an amendment application in divorce proceedings cannot be allowed after a delay of 10 years when the party was aware of the facts at the time of institution of suit. It held that such amendment application is only to prolong litigation and cannot be entertained at the stage of final hearing.While dealing with wife's plea against allowing husband's amendment application seeking restitution of conjugal rights after 10 years of institution of divorce proceedings, the bench of Justice Vivek Chaudhary and Justice Brij Raj Singh held,“the respondent has recently filed an application for amendment just to delay the proceedings and to harass his deserted wife, who is running from pillar to post for the last 10 years. The provisions of Order VI Rule 17 C.P.C. is to be seen in the perspective of the given facts that unless the court comes to the conclusion that in spite of due diligence the party could not have raised the matter before the court. In the present case, for the last 10 years the respondent was silent over the matter and when the proceedings were at final stage, he moved the amendment application, which is against the spirit of the provisions of Order VI Rule 17 of C.P.C.”After parties got married in 2011, the husband and his family demanded a car and dowry. Due to the demand and other circumstances, the appellant-wife left her marital home and lodged FIR under Sections 498-A, 504, 506 I.P.C. & Section 3/4 of the Dowry Prohibition Act. After the parties had lived separately for more than a year, the appellant filed for divorce under Section 13 of the Hindu Marriage Act in 2014. The Court noted that the respondent-husband had been using delaying tactics by filing summoning applications which were all rejected by the Family Court. Appellant, in 2024, approached the High Court for expediting the divorce proceedings. The High Court directed that the suit be decided within 4 months. Thereafter, the husband filed another summoning application which was rejected and appeal against the same was also dismissed by the High Court. The respondent-husband then filed an amendment application before the Family Court seeking restitution of conjugal rights. This application was allowed by the Family Court. Appellant-wife approached the High Court against the order of the Family Court. Counsel for appellant argued that because of the delay tactics employed by the respondent-husband, the appellant was unable to start her life afresh. It was argued that the Family Court had failed to consider Order VI Rule 17 C.P.C. as the amendment application was filed 10 years after institution of divorce proceedings. Order VI Rule 17 C.P.C. provides that amendment application can be moved at any stage of the proceedings. However, an amendment application cannot be allowed after commencement of trial provided the Court concludes that the same could not have been moved earlier despite due diligence. It was also argued that the claim for restitution of conjugal rights was never pleaded in the 10 years of proceedings and was being used to prolong litigation. The Court observed that the respondent-husband had failed to explain his silence over 10 years and moving the application for counter claim only when the date for final hearing was set. The Court relied on J. Samuel and others Vs. Gattu Mahesh and Others, where the Apex Court defined “due diligence” as:“Due diligence is the idea that reasonable investigation is necessary before certain kinds of relief are requested. Duly diligent efforts are a requirement for a party seeking to use the adjudicatory mechanism to attain an anticipated relief. An advocate representing someone must engage in due diligence to determine that the representations made are factually accurate and sufficient. The term "due diligence" is specifically used in the Code so as to provide a test for determining whether to exercise the discretion in situations of requested amendment after the commencement of trial.”The bench headed by Justice Chaudhary observed that the amendment sought by the respondent-husband was known to him since the institution of the suit and the amendment was only used a delaying tactic and to harass the wife. The Court expressed surprise on the fact that despite the order of the High Court to complete the proceedings in 4 months, the amendment application was allowed by the Family Court. “The order dated 4.12.2024 which has been filed as Annexure No.5 to the appeal indicates that Family Court recorded a finding that respondent was afforded ample opportunity to lead evidence and thereafter opportunity for leading evidence was closed and the matter was fixed for hearing on 23.12.2024. However, respondent in order to delay the proceedings moved the amendment application on 19.12.2024 and the Family Court without application of proper judicial mind allowed the said application.”Accordingly, the appeal by the wife was allowed with a direction to the Family...

Spouse Can't Amend Pleadings To Seek Restitution Of Conjugal Rights After 10 Years Into Divorce Case, Dilatory Tactics: Allahabad High Court

Upasna Agrawal

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