The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.33436 of 2021 (In the matter of an application under Articles-226 & 227 of the Constitution of India) Saroj Kumar Behera Debajani Arka @ Behera -versus- …. …. Petitioner Opposite Party For Petitioner : Mr. S. Udgata, Advocate For Opp. Party : None CORAM: JUSTICE G. SATAPATHY DATE OF HEARING & JUDGMENT:04.03.2025(ORAL) G. Satapathy, J. 1. The Petitioner who is the husband of the OP, by means of this writ petition has invoked the extra ordinary writ jurisdiction of this Court under Articles 226 & 227 of the Constitution of India praying to quash the impugned order dated 25.02.2021 passed by the learned Judge, Family Court, Sambalpur in C.P. No.13 of 2021 under Annexure-4. WPC No.33436 of 2021 Page 1 of 11 By Annexure-4, the learned Judge, Family Court has rejected the petition for amendment as filed under Order-VI, Rule-17 of the Code of Civil Procedure, 1908 (In Short “CPC”) by the writ petitioner. 2.
Legal Reasoning
(supra), this Court has held that the facts sought to be incorporated by way of amendment relate to the allegations of cruelty, which had taken place after filing the suit and the allegation being subsequent events can be incorporated in the petition. In Rajesh Kumar Aggarwal(supra), the Apex Court has held that merits of the amendments sought to be incorporated by way of amendment are not to be adjudged at the stage of allowing the prayer for amendment. Law is also equally well settled in Bondar Singh (supra) that in the absence of a plea, no amount of evidence led in relation thereto can be looked into. A careful reference to the decision referred to in Sampath Kumar (Supra) makes it ample clear that the amendments which are sought for must be relevant to determine the real question in controversy between the parties may be allowed. A WPC No.33436 of 2021 Page 7 of 11 bare perusal of the provisions of Order-VI Rule-17 of the CPC which provides for amendment of pleadings makes it very clear that allowing the application for amendment is the discretion of the Court, but such discretion has to be exercised carefully and diligently, but not arbitrarily or capriciously. The amendments which are necessary and just for the purpose of real adjudication of the dispute between the parties should not be disallowed merely on technical grounds. Law is also well settled that amendments of pleadings can be allowed even after commencement of hearing and even at the appellate stage, but the same must be necessary and for just decision of the case. 5. Looking at the amendments sought for by the petitioner, this Court also considers it appropriate to remind itself to the provision of Order- VI Rule-16 of the CPC which provides for striking out pleadings and the said provision prescribes that the Court may at any stage of the proceedings order to WPC No.33436 of 2021 Page 8 of 11 be struck out or amended any matter in any pleading (a) which may be unnecessary, scandalous, frivolous, vexatious or (b) which may tend to prejudice, embarrass, delay the fair trial of the suit or (c) which is otherwise an abuse of process of the Court. A casual look to the proposed amendments, it appears that the Petitioner by way of amendment wants to make certain allegations against the OP-wife with regard to her chastity and character. Further, the proposed amendments sought to be incorporated also reveal about the allegations against the OP-wife living an adulterous life, but without impleading the person with whom the OP is alleged to be living in adultery. On a close scrutiny of the prayer of the writ Petitioner in the proceeding before the learned trial Court under the Act seeks for a direction to the Respondent (OP) to produce the two children before the Court for interrogation and conciliation and to pass orders thereafter. In essence the application by the Petitioner in the proceeding before the learned WPC No.33436 of 2021 Page 9 of 11 Judge, Family Court is for custody and welfare of the children. The learned trial Court by the impugned order has rightly observed that since the proceeding before it is under the Act, the paramount consideration is the welfare of the children, but the Petitioner by way of an amendment intends to impute the personal life and character of the OP-wife which is not necessary and the same appears to be scandalous and prejudicial to the OP-wife in a proceeding for custody matter. Additionally, it is also informed by the learned counsel for the Petitioner that the matter is right now posted for argument. 6. In view of the aforesaid facts and circumstances and on a conspectus of the discussion made hereinabove vis-à-vis the claim of the Petitioner and the original proceeding being filed for the custody of the children, this Court does not find any justification to allow the writ petition permitting the petitioner to make amendments to his petition seeking custody of the children in essence. WPC No.33436 of 2021 Page 10 of 11 7. In the result, the writ petition being devoid of merit stands dismissed. (G. Satapathy) Judge Orissa High Court, Cuttack, Dated the 4th March, 2025/Priyajit Signature Not Verified Digitally Signed Signed by: PRIYAJIT SAHOO Designation: Jr. Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA Date: 07-Mar-2025 19:13:33 WPC No.33436 of 2021 Page 11 of 11
Arguments
Heard, Mr. Sanjeev Udgata, learned counsel for the Petitioner and perused the record, but none appears for the OP despite being duly noticed. In the course of hearing, Mr. Udgata, learned counsel for the Petitioner, however, submits that unless the amendment is allowed, the Petitioner would be highly prejudiced in putting-forth his plea before the concerned Court and there is absolutely no Bar for a Court to entertain amendment application after commencement of the hearing, however, the writ Petitioner has filed such petition before filing of the written statement by the OP. In support of his contentions, Mr. Udgata relies upon the following decisions:- (i) Sampath Kumar Vrs. Ayyakannu and another; AIR (2002) SC 3369, (ii) Sunanda WPC No.33436 of 2021 Page 2 of 11 Kar alias Ratha Vrs. Sudip Ratha;2006 (1) CLR 257 (iii) Rajesh Kumar Aggarwal and others Vrs. K.K. Modi and others; AIR (2006) SC 1647 and (iv) Bondar Singh and others Vrs. Nihal Singh and others; AIR (2003) SC 190. 3. After having considered the submission as advanced for the Petitioner, since the Petitioner prays to allow him to amend his petition under the Guardians and Wards Act, 1890 (In Short “the Act”) in the nature of plaint, for clarity and proper adjudication, the proposed amendments, which are stated in para 2(n) to 2(y) of the amendment petition, are extracted as under:- “2(n):-That, the respondent has taken away the two minor children discontinuing their studies from Saint Lawrence Kinder garden school, Tentuloi-759128 with intent to get maintenance for the two children of Rs 20,000/- per month to each; Rs 15,00,000/- and damage, Rs 5000/- per month for separate accommodation for herself and two children at Kuchinda etc in order to keep her widowed mother with them comfortably. The respondent and her mother are also addicts to alcohol requiring wine daily. She also intended to purchase a WPC No.33436 of 2021 Page 3 of 11 high quality car for use with her paramour Biju Sahu. She is also regularly making cohabitation with her paramour. to leaving The respondent has no intention to keep Swastika with her as she misbehaved with the respondent and her paramour and she also considers her daughter as disturbance for her and her paramour during their sexual acts which they were carrying out regularly in the residence of respondent at Kuchinda in her parental house as well as in the house of her paramour in village Saida which is near Kuchinda, much prior the petitioner for ever since 01.01.2016 with preplan to marry/living in relation for ever with her paramour Biju Sahu which is also in the knowledge of the mother of the respondent. The respondent also considers the daughter as disturbance to the son Satyajit. 2(o) That, the paramour of the respondent has transmitted ugly caricaturist photos of daughter Swastika to respondent which shows the insensitive attitude of the respondent towards the children and this also caused huge mental agony to the petitioner being the father of the children. 2(p) That, the daughter Swastika is being referred as MENTAL (mad person) in the conversations of the respondent and her paramour. 2(q) That, respondent and her paramour Biju Sahu desired to have a third children of their own apart of the two children of the petitioner. and Satyajit the WPC No.33436 of 2021 Page 4 of 11 2(r) That, the respondent also intended to send the daughter to Kesaibahal Hostel in order to remove the disturbance from her house. She is also ready to go to any extent to fight with her husband as she presupposes that the petitioner would obstruct her from doing so. 2(s) That, the respondent wants to linger this proceeding intentionally as she believes that her daughter would speak against her and her paramour if she (daughter) goes to the petitioner. Further, the paramour has also assured the respondent that they will try to keep the daughter away from the petitioner for a longer time so that the petitioner will fade away from the memory of the daughter as the daughter does not accept the paramour as father. 2(t) That, the paramour has stated that the son of the petitioner has accepted him as father. 2(u) That, the paramour has stated to the respondent that he has no interest upon the daughter; he has also stated to the respondent that the daughter is following and avoiding him to which the respondent replied that she will send her to hostel; this has made the petitioner fearful about any untoward treatment to his daughter by the paramour and the respondent. 2(v) That, the respondent has accepted each other as husband and wife. 2(w) That, the paramour has also stated to the respondent that the son Satyajit has disturbed him while he was involved in sexual act with the respondent. 2(x) That, the respondent has also stated to her paramour that after covid 19 is over the paramour and WPC No.33436 of 2021 Page 5 of 11 she will send the daughter to hostel as she is incapable to maintain two children together and her job. 2(y) That, in Dec 2020, the respondent was pregnant with the paramour and has also done abortion by applying tablets in the advice of Dr. Dora. It is, therefore, prayed that this Hon’ble Court may be pleased to allow para 2(n) to 2(y) to be added in this proceeding for just decision of this case; for this act of kindness the petitioner shall duty bound to ever pray.” 4. Before embarking upon the claim of the writ Petitioner, this Court is quite in agreement with the principles laid down by the Courts in the decisions relied on by the writ Petitioner. Accordingly, in Sampath Kumar (Supra), the Apex Court has held that Order-VI Rule-17 of the CPC confers jurisdiction on the Court to allow either party to alter or amend his pleadings at any stage of the proceeding and on such terms as may be just. Such amendments as are directed towards putting-forth and seeking determination of the real questions in controversy between the parties shall be permitted to be made. It is further held therein that pre trial amendments are WPC No.33436 of 2021 Page 6 of 11 allowed more liberally than those which are sought to be made after commencement of the trial or after conclusion thereof. In Sunanda Kar alias Ratha