Wife seeks to insert averments with respect to impotency of husband, can amendment to petition for annulment of marriage be allowed? Bom HC explains

Bombay High Court: While addressing a matter, Mangesh S. Patil, J., laid down significant aspects with regard to when a petition can be amended.

Petitioner had filed a proceeding for annulment of marriage styling it to be a petition under Section 12 of the Hindu Marriage Act and was aggrieved by the rejection of her application for amendment of the petition seeking to add a paragraph so as to insert the averments in respect of impotency of the respondent-husband.

Analysis, Law and Decision

Bench noted that the petitioner did file the petition styling it to be one for annulment of marriage under Section 12.

She made a strenuous attempt to allege that the respondent was all the while unwilling to consummate the marriage, also she narrated the episodes wherein he denied having sex.

Further, Court stated that it could have been in her mind to make up a ground under Section 12(1)(a) of the Hindu Marriage Act seeking annulment on the ground of impotency of the respondent, the petition clearly lacked specific and clear averments so as to make out that ground.

Even the trial court framed the issue unmindful of the provision under which the relief was being claimed by the petitioner.

It was observed that there was no material to show that the petitioner had ever made any attempt to seek the issues to be recast.

Petitioner sought to add the following paragraph:

“13-A. That thereafter also with a hope that the behavior of respondent will improve on some day or the other, the petitioner kept on trying communicating and having sexual relationship with the respondent however; to the shocking of petitioner, the respondent rudely and clearly uttered that, he is not interested in women and has different choice of sex. He clearly told petitioner that, he is unable to establish sexual relationship with her as he is incapable of same. He said that, he is interested in males than females for satisfying sexual desire. Thus, it reveled to the petitioner that, the respondent is sexually impotent and unable to consummate the marriage. However; on multiple occasions petitioner literally begged respondent to seek medical treatment for this cause with a hope to consummate the marriage however, the respondent shown utter disregard to this suggestion of petitioner and continued depriving her from fulfilling sexual obligation.”

Supreme Court in catena of decisions had laid down parameters to be borne in mind while considering the request for amendment of the pleadings some of which were culled down by it in the case of Ravajeetu Builders and Developers v. Narayanaswamy and Sons, (2009) 10 SCC 84, which have been referred to and relied upon even by the trial court.

Court further added that the proposed amendment should not have the tendency of causing any prejudice to the other side.

“…it is during her cross-examination when the petitioner admitted several clinching circumstances touching her claim to seek annulment that the proposed amendment is sought to be made.”

While concluding the matter, High Court held that,

“Allowing such amendment to be carried out would certainly put the clock back.

If she has proceeded with the petition with the serious infirmities in the pleadings as well as in her testimony, the proposed amendment is nothing but an attempt to fill the lacuna. A serious prejudice, therefore, is certain to be caused to the respondents.”

Another aspect was that,

“if the proposed amendment is allowed to be carried out, there is every possibility of the petitioner then seeking to make the respondent undergo some medical examination to bring home her allegations. This would certainly be the prejudice of the respondent.”

Therefore, Bench held that there was in illegality in the order under challenge. [Vaishali Shrikant Arane v. Shrikant Pandir Arane, 2021 SCC OnLine Bom 5026, decided on 7-12-2021]


Advocates before the Court:

Advocate for Petitioner: Mr. Shaikh Mazhar A. Jahagirdar

Advocate for Respondent: Mr. Rahul R. Karpe

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