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Plea for restitution of conjugal rights cannot be amended into a divorce petition: Bombay High Court

The Bombay High Court overturned a family court order that allowed an application for restitution of conjugal rights to be amended into a plea for dissolution of marriage through Justice BHARATI DANGRE in the case of Ariz Kohli vs Tehzeeb Kohli (WRIT PETITION NO. 6276 of 2022)

FACTS OF THE CASE:

According to Muslim Rites and Rituals, the petitioner and respondent were married on January 20, 2002, and a son was born out of wedlock in 2004. Due to the differences, the wife petitioned Family Court No.5 in Bandra, seeking, among other things, the restitution of conjugal rights and other reliefs. The petition, which runs 119 pages, refers to the couple’s marital problems and also contains significant allegations regarding the respondent having a love affair with a woman. It is said that, despite her silence, she was tormented by her husband, and his violent nature terrified her.

She also claimed that he did not pay her monthly expenses and habitually threw tantrums whenever such a demand was made. It was alleged that the respondent mentally harassed and tortured her and mistreated her throughout their ongoing extramarital relationship by expressing his anger, aggression, cold behavior, and ruthless attitude. In the aforementioned proceedings, a decree for restitution of conjugal rights was sought, as well as a claim for Rs. Three lakhs in monthly maintenance for herself and her young son. Other benefits included the responsibility being placed on the husband to cover the child’s educational expenditures.

On 11/1/2018, the petitioner’s wife filed another application seeking interim maintenance, to which the husband responded. On April 25, 2019, the application for interim maintenance was denied, and a Writ Petition was filed in this Court, which is still pending adjudication.

After two years of filing the petition detailed above, the petitioner’s wife filed an Interim Application under Order 6 Rule 17 of the CPC, requesting a revision to the Petition. The petitioner requested that specific pleadings be added to the petition in accordance with the schedule and that the prayer clause be amended.

The Amendment Application is based on the petitioner’s belief that her marriage could be saved at the time the petition was filed. When carefully read, the Schedule of the Amendment is nothing more than a continuation of the narration of the respondent/actions, husband’s together with his paramour, in order to humiliate the petitioner, and several additional instances have been listed.

JUDGEMENT:

The Court noted that when the petition filed by the respondent/wife seeking restitution for conjugal rights and other ancillary reliefs is read, it clearly reflects the two’s troubled relationship. Regardless, relief for restitution of conjugal rights is sought. The amendment extends the existing troubled relationship, and the relief of recovery of conjugal rights is sought to be replaced by the one for dissolution of marriage.

It was stated that the amendment is not required for proper and effective adjudication of the existing petition seeking restitution of conjugal rights and that no prejudice is caused to the petitioner if the amendment is denied, because the petitioner can always institute a fresh petition for dissolution of marriage. After all, the marriage is sought to be dissolved on the grounds specified in section 2(ii)(iv) (viii).

The primary rule to regulate the courts’ discretion was whether the change is required for the decision of the true question in controversy. Furthermore, in light of the pleading in the wife’s petition, the remedy sought through amendment is exclusive, entirely extrinsic, and alien to the one sought.

It was held that the learned Judge of the Family Court erroneously failed to assess the full context of the provision allowing the grant of amendment under Ruling 6 Rule 17 of the Code. Hence, the impugned order cannot be supported. By setting aside the stated ruling, the writ petition becomes absolute in terms of the prayer clause (b).

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JUDGEMENT REVIEWED BY REETI SHETTY

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