Dismissal Of Divorce Petition Does Not Bar Second Plea For Divorce On Different Grounds: Allahabad High Court

The Allahabad High Court has held that dismissal of a divorce petition on one ground does not bar a second divorce petition under Section 13 of the Hindu Marriage Act, 1955 on any other ground between the same parties.

Justice Manish Kumar Nigam held

“Decision of a petition under Section 13 of the Hindu Marriage Act, 1955 on one ground will not operate as res judicata for filing divorce petition on other grounds as specified in Section 13 of the Hindu Marriage Act, 1955. Once the party is permitted to file a second petition even after dismissal of the first petition on a separate ground, there is no impediment in taking that ground by moving an application for amendment in the petition.”

The Court held that amendment of grounds in divorce petitions can be allowed to avoid multiplicity of proceedings.

Husband-respondent filed a divorce petition under Section 13 of the Act before the Family court, Hamirpur. A written statement was filed by the petitioner-wife denying the averments. Thereafter, the Family Court framed the issues. Subsequently, the husband filed an amendment application to change the grounds which were strongly opposed by the wife. This application was allowed.

Challenging the order allowing the amendment, petitioner-wife pleaded that an amendment application cannot be filed after framing of the issues, and cannot be accepted by the Court unless it is satisfied that the plaintiff could not have pleaded the grounds at the time of initial filing despite due diligence. It was also argued that once the divorce petition had been filed alleging desertion and cruelty, immorality could not be added as ground later.

Observing that it is not an absolute law under Rule 17 of Order VI of C.P.C. that amendment cannot be filed after framing of issues, the Court held that an amendment can be allowed to do complete justice between the parties. It held that where amendment intends to add a fresh cause of action for which a fresh suit is maintainable, the same can be allowed to avoid multiplicity of proceedings.

Referring to the judgment of the Apex Court in Mohinder Kumar Mehra Vs. Roop Rani Mehra and others, Justice Nigam held that technically trail commences when the date for evidence of the plaintiff is fixed. It held that in the case at hand, evidence had not commenced and only issues were framed.

The Court observed that the Family Court had recorded a specific finding that the facts urged in the amendment application had come to the knowledge of the plaintiff after filing of the plaint, therefore, the amendment application could be allowed.

“If some facts have come to the knowledge of the party to the suit subsequent to the commencement of trial, may be during the course of trial and if it is found that it is necessary for the purpose of determining the real questions in controversy between the parties, on a fair reading of Order VI Rule 17 CPC, such an application for amendment can be allowed even after the trial has commenced.”

Further, the Court held that there was no bar under Section 13 of the Act to file for divorce on more than one grounds. Therefore, adding a new ground for divorce by way of an amendment was not prohibited in law.

Holding that the amendment was not per se introducing new grounds but elaborating the ground of cruelty already taken, the Court dismissed the petition and upheld the order of the Family Court allowing the amendment.

Case Title: Chitranshi v. Rajnarayan Tripathi

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