M.R.SHAH, J. - (1.) Feeling aggrieved and dissatisfied with the impugned common judgment and order dated 27.09.2019 passed by the High Court of Gujarat at Ahmedabad in SCA No. 11379/2018 and SCA No. 16101/2018, by which the High Court has dismissed writ petition being quashed and set aside the order passed by the learned Family Court dated 8.5.2018 passed below the application (Exhibit 281) in Family Suit No. 862/2007, the original writ petitioner in SCA No. 11379/2018 and the original respondent in SCA No. 16101/2018 has preferred the present appeals.
(2.) The facts leading to the present appeals in nutshell are as under: The marriage between the appellant and the respondent took place on 1.3.1987 according to the Hindu rites. Out of the said wedlock, they had a child, named as 'Devashya ' on 3.5.1990. The appellant was also a doctor, but it was the case on behalf of the appellant that after the birth of the child she stopped practising as a doctor and remained housewife. The dispute arose between the husband and the wife and the respondent-husband filed a Hindu Marriage Petition No. 862 of 2007 before the learned Family Court under Section 13 of the Hindu Marriage Act for dissolution of marriage, mainly on the ground that the appellant- wife is guilty of cruelty. The learned Family Court issued notice. The appellant-wife appeared and filed reply (Exhibit 9) on 11.4.2008. A rejoinder affidavit was also filed by the respondent-husband (Exhibit 10) on 22.9.2008. The appellant further submitted an affidavit-in-sur- rejoinder as Exhibit 13 in the month of November, 2008. The respondent-husband also filed an affidavit of evidence on record. According to the appellant-wife, the respondent-husband deserted her and their son on 9.2.2006 and the respondent-husband refused to provide maintenance for her and their son. 2.1 At this stage, it is required to be noted that in the written statement filed by the appellant-wife, it was the case on behalf of the appellant that the respondent-husband as on today is cohabiting with another woman, openly moves around with the said woman and introduces the said lady as his new wife and is travelling not only in the country but abroad with her. It was the case on behalf of the appellant-wife in the written statement that since the respondent-husband wants to marry the said woman, a false and fabricated story is placed before the Court. However, in the rejoinder affidavit filed by the respondent-husband, so stated in para 20, it was the case on behalf of the respondent-husband that so far as Ms. Hinaben Manubhai Panchal is concerned, the said lady is a manager in the hospital run by him and she is looking after the hospital and accounts as her job, which has nothing to do with the present dispute between the parties. It was the case on behalf of the appellant that subsequently she got to know that the respondent- husband had married the aforesaid Ms. Hinaben Manubhai Panchal and has suppressed the said fact, she filed an application (Exhibit 281) seeking amendment in her written statement by adding paras 35,36 and 37, which read as under: "Para No.35: The opponent submits that the petition married with one Hinaben Manubhai Panchal on 14.12.2006 at Sudama resort, Paldi, Ahmedabad. The opponent stated that after the marriage solemnized between the petitioner and Hinaben, the petitioner filed the petition for divorce in the month of July 2007 against the opponent. The petitioner never informed to the Hon'ble Court that he married with Hinaben on 14.12.2006. When the petition was filed that time the petitioner intentionally suppress material facts with malafide intention. When the petitioner did not come before the Hon'ble Court with clean hand than the petitioner petition is legally not tenable under the provisions of the law. Moreover, due to the marriage life with Hinaben, the petitioner have having illegitimate son Dev, who is as on today residing with the petitioner; The petitioner stated that there is no divorce granted in favour of the petitioner by the Hon'ble Court or the by the family court and opponent are as today alive even though the petitioner married with Hina Panchal, only for sex purpose. Even the petitioner gone to many places of the World with Hina and they were residing to gather because the petitioner accepted Hina as wife. Moreover, the petitioner went to so many places with in India, either for honeymoon purpose or for enjoyment. The petitioner as on today living the life in adultery therefore the divorce cannot be granted in favour of the petitioner. Moreover, the person who does not come before the Hon'ble Court with clean hands are not entitled any relief from the Court. Therefore, the petition filed by the petitioner are require to dismiss with cost. The opponent states that as on today the marriage between the petitioner and the respondent are continued, no divorce are granted by any court even though the petitioner married with Hina Panchal on 14.12.2006. Therefore, the marriage between the petitioner and Hina Manubhai Panchal are illegal, void and voidable. Therefore, there is a necessary to declare by Court that the marriage between the petitioner and Hinaben Manubhai Panchal are illegal, void and voidable. Therefore, the present counter claim application are filed by the petitioner. Para No.36:- The respondent states that by doing the marriage by petitioner with Hinaben Panchal, it is a fraud with the respondent and therefore the provision of the limitation are not applicable in the present matter. The opponent states that the cause of action of the counter claim is arisen when the petitioner done the second marriage with Hinaben Manubhai Panchal. The cause of action is continue day to day for declaring between the petitioner and Hinaben marriage illegal, void, voidable. Moreover the cause of action have arisen when the respondent have come to know that the petitioner have intentionally done the fraud with the respondent by doing the second marriage with Hinaben Panchal. Even when the first marriage between the petitioner and respondent are continued. Moreover till the second between the petitioner and Hinaben Panchal are not declare illegal, void and voidable till that the cause of action of the counter claim are continued. The marriage between the petitioner and Hinaben Panchal are illegal, void and voidable therefore the cause of action of the present counter claim application are arisen in the jurisdiction of this Court. Para No.37:- Therefore, the respondent prays that, a. Your Honor may allow the present counter claim application and declare that the marriage between the petitioner with Hina Manubhai Panchal dated 14.12.2006 are illegal, void and voidable. Further declare that Hina Panchal is not the legal wife of the petitioner and also declare that the petitioner are living with Hina Panchal in adultery. b. Your Honor may declare that son Dev, born through the petitioner and Hinaben Panchal marriage life is illegitimate child of the petitioner. c. Your Honor grant any other relief which your Honor think proper and reasonable. d. Cost of this application. e. The proper court fees are affixed upon the application." 2.2 By order dated 8.5.2018, the learned Family Court partly allowed the said application (Exhibit 281) and allowed the amendments by permitting the appellant-wife to incorporate paras 35 and 36 in the written statement and refused to permit the appellant-wife to amend the written statement as per para 37. At this stage, it is required to be noted that before the learned Family Court, the appellant-wife in support of her prayer to permit the amendment by adding para 37 heavily relied upon the provisions of Section 23A of the Hindu Marriage Act. 2.3 Aggrieved by the order passed by the learned Family Court rejecting her prayer to add the prayer clause in terms of para 37 and refusing to permit the amendment in terms of para 37, the appellant-wife preferred SCA No. 11379/2018 before the High Court. Simultaneously, the respondent-husband also challenged the order passed by the learned Family Court allowing and/or permitting the appellant-wife to add paras 35 and 36 in the written statement before the High Court being SCA No. 16101/2018. By the impugned judgment and order, the High Court has allowed the respondent-husband 's writ petition being SCA No. 16101/2018 and dismissed the appellant-wife 's writ petition being SCA No. 11379/2018 on the ground that the amendment could not be allowed at this belated stage. However, the High Court in the impugned judgment and order has observed that the appellant can file a separate suit seeking for a declaration that the second marriage of the respondent-husband is void. 2.4 Feeling aggrieved and dissatisfied with the impugned common judgment and order passed by the High Court, rejecting the application (Exhibit 281) preferred by the appellant-wife and not permitting the amendment as per paras 35, 36, and 37 in the written statement, the appellant-wife has preferred the present appeals. At this stage, it is required to be noted that the proposed prayer in terms of para 37 to declare that the second marriage between the respondent-husband and Hinaben Manubhai Panchal dated 14.12.2006 is illegal, void and voidable was as a counter claim and for that Section 23A of the Hindu Marriage Act was relied upon.
(3.) Shri Puneet Jain, learned Advocate has appeared on behalf of the appellant-wife and Shri Mihir Thakore, learned Senior Advocate, assisted by Ms. Aastha Mehta, learned Advocate, has appeared for the respondent-husband. 3.1 Shri Puneet Jain, learned Advocate appearing on behalf of the appellant has vehemently submitted that the marriage between the appellant and the respondent was solemnized on 1.3.1987 and a child named 'Devashya ' was born. 3.2 It is submitted that during the subsistence of the marriage, the respondent-husband developed illicit relationship with one Hinaben Manubhai Panchal. The respondent-husband filed a petition under Section 13 of the Hindu Marriage Act on 6.8.2007 seeking divorce from the appellant. The fact regarding his entering into a marriage with the aforesaid Hinaben Manubhai Panchal on 14.12.2006 was deliberately suppressed by the respondent-husband. It is submitted that however at the relevant time the fact of illicit relationship of the respondent with Hinaben Manubhai Panchal was only known to the appellant and specific submissions/averments were made in the written statement dated 19.6.2008. 3.3 It is submitted that in the rejoinder affidavit, as such, the respondent-husband did not specifically deny the allegations of illicit relationship with Hinaben Manubhai Panchal but submitted that so far as Ms. Hinaben Manubhai Panchal is concerned, the said lady is a manager in the hospital run by him and she is looking after the hospital and accounts as a job. 3.4 It is submitted that when the rejoinder affidavit was filed in 2008, the respondent-husband did not disclose the factum of marriage on 14.12.2006 between the respondent-husband and the said Hinaben Manubhai Panchal. It is submitted therefore and thus the appellant was not aware about the respondent 's entering into the marriage with Hinaben Manubhai Panchal earlier. It is submitted that it came on record during the cross-examination of the respondent which concluded in 2017 that in fact he had entered into a second marriage with Hinaben Manubhai Panchal on 14.12.2006. Even the marriage certificate was produced on record as Exhibit 200. It also came on record that the respondent has a son named 'Dev ' from the said illegal relationship and his birth certificate has also been produced on record as Exhibit 201. 3.5 It is submitted that therefore the appellant was absolutely justified in submitting the application (Exhibit 281) for amendment of the written statement to add paras 35 and 36 to plead the facts regarding the second marriage and also to seek relief in the nature of counter claim vide para 37 seeking a declaration inter alia that the marriage between the respondent and the said Hinaben Manubhai Panchal is null and void and that Hinaben Manubhai Panchal is not a legal wife of the respondent-husband and that he was living with her in adultery. 3.6 It is submitted that a declaration was also sought that the son 'Dev ' born to the respondent with Hinaben Manubhai Panchal is an illegitimate child. 3.7 It is submitted that however the learned Family Court allowed the application in part allowing addition of paras 35 and 36 but did not permit amendment in the written statement to add/introduce counter claim in terms of para 37. It is submitted that even the order dated 8.5.2018 passed by the learned Family Court allowing the introduction/addition of paras 35 and 36 has also been set aside by the High Court, by the impugned judgment and order. 3.8 Shri Puneet Jain, learned Advocate appearing on behalf of the appellant has vehemently submitted that, as such, in the facts and circumstances of the case, narrated hereinabove, the application filed by the appellant-wife for amendment of the written statement is required to be allowed in toto. It is submitted that the fact regarding actual marriage of the respondent-husband with Hinaben Manubhai Panchal (third party) was not known to the appellant, which fact came to the knowledge only during cross-examination of the respondent in the present proceedings when the marriage certificate(Ex.200) as well as the birth certificate of his son 'Dev ' (Ex.201) out of the marriage between the respondent and Hinaben Manubhai Panchal came on record as Ex. 201. 3.9 It is submitted that soon thereafter the appellant filed an application for impleadment of Ms. Hinaben Manubhai Panchal as a party and the application for amendment of the written statement, Ex. 281. It is submitted that therefore at the first available opportunity after the appellant came to know about the actual marriage between the respondent and Hinaben Manubhai Panchal, which came to light in the year 2017, the application (Ex. 281) was filed and therefore the same ought to have been allowed. 3.10 It is submitted that the High Court has materially erred in rejecting the application (Ex. 281) on the ground that once the written statement has been filed, the defendant cannot be permitted to amend the written statement. It is submitted that in the facts and circumstances of the case, the High Court has erred in relying upon and/or has misconstrued the provisions of Order VIII, Rules 8 and 9 CPC and proviso to Order VI Rule 17 CPC. 3.11 It is submitted that even the factum of actual marriage between the respondent and Hinaben Manubhai Panchal on 14.12.2006 came to the knowledge of the appellant after filing of the written statement and therefore the appellant can be permitted to amend the written statement bringing on record the factum of actual marriage on 14.12.2006 between the respondent and Hinaben Manubhai Panchal and the bar contained in proviso to Order VI rule 17 CPC shall not come in the way and in any case the same may be permitted with the leave of the Court to either amending the written statement or by filing an additional written statement. 3.12 It is submitted that as such there was no delay in filing the application (Ex.281) under Order VI Rule 17 CPC from the date of knowledge of the actual marriage which came to light during the cross- examination of the respondent. It is submitted that even otherwise delay is no ground for refusal of prayer for amendment of a written statement. Reliance is placed on the decision of this Court in the case of Andhra Bank v. ABN Amro Bank, (2007) 6 SCC 167 (para 5). It is submitted that even the High Court has proceeded on an erroneous premise assuming knowledge of illicit relationship as knowledge of marriage between the respondent and Hinaben Manubhai Panchal. 3.13 It is further submitted that power to allow amendment is wide and is to be liberally construed; the Court is only required to see that if the amendment causes any prejudice to the other party. It is submitted that as such the learned Family Court has specifically found that no prejudice shall be caused to the respondent due to the amendment. Reliance is placed on the decisions of this Court in the cases of Chander Kanta Bansal v. Rajinder Singh Anand, (2008) 5 SCC 117 (para 11); Abdul Rehman v. Mohd. Ruldu, (2012) 11 SCC 341 (para 11); and Gurbakhsh Singh v. Buta Singh, (2018) 6 SCC 567 (paras 4 and 5). 3.14 It is submitted that as such the underlying principle behind allowing the application under Order VI Rule 17 CPC or to raise a counter claim under Order VIII Rule 6A is to prevent multiplicity of proceedings. It is submitted that the grounds raised in the amendment vide paras 35 and 36 are not only in the nature of a defence against the allegations of desertion and cruelty, but also constitute necessary pleadings in support of relief sought for in the counter claim. It is submitted that the amendment sought for would not change the character of the suit. 3.15 It is further submitted that even the relief sought in terms of para 37 is the counter claim for declaring the marriage of the respondent- husband with Hinaben Manubhai Panchal as null and void and for the legitimacy of their son 'Dev ' is consequential in view of the undisputed and admitted fact that the marriage between the appellant and the respondent is still subsisting. It is submitted that it is to be noted that as such the present proceedings filed by the respondent-husband are to seek a decree for divorce under Section 13 of the Hindu Marriage Act which has yet not been decided and therefore as on today the marriage between the appellant and the respondent is subsisting. It is submitted that therefore the marriage between the respondent and Hinaben Manubhai Panchal is thus illegal under Section 5(a) of the Hindu Marriage Act. It is submitted that therefore the relief sought for in the counter claim is undeniable on admitted facts and will have to be granted "irrespective " of the outcome of the petition filed by the respondent under Section 13 of the HMA. It is submitted that as such the counter claim is permissible as per Section 23A of the HMA. 3.16 It is further submitted that even otherwise the cause of action for filing the counter claim has arisen after filing of the written statement and more particularly in the cross-examination of the respondent-husband that the respondent had got married to Hinaben Manubhai Panchal on 14.12.2006. It is submitted that therefore also the declaration as sought for in para 37 by way of counter claim ought to have been permitted/allowed. Reliance is placed on the decision of this Court in the case of Ashok Kumar Kalra v. Wing Commander Surendra Agnihotri, (2020) 2 SCC 394 (paras 12 to 18 and 21). 3.17 It is further submitted that even otherwise a counter claim is in any case is to be decided as an independent suit and so long as the relief sought for is otherwise within limitation, the same can be entertained. In the present case, the petition under Section 13 was still at the stage of evidence, wherein the appellant - original defendant has to lead evidence in defence who could lead common evidence for defence and counter claim and the respondent-husband can be permitted to rebut, if so required. It is submitted that therefore no prejudice would thus be caused to the respondent if application (Ex. 281) is allowed in toto. 3.18 Making the above submissions and relying upon the aforesaid decisions, it is prayed to allow the present appeals. ;