Madras High Court
R.Gokila vs A.Malaikolunthu on 1 July, 2024
Author: D.Bharatha Chakravarthy
Bench: D.Bharatha Chakravarthy
C.R.P. (MD) No. 2033 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 01.07.2024
CORAM
THE HON'BLE MR. JUSTICE D.BHARATHA CHAKRAVARTHY
C.R.P. (MD) No. 2033 of 2022
and
C.M.P. (MD) No.9282 of 2022
R.Gokila ... Petitioner/
Petitioner
-vs-
A.Malaikolunthu ... Respondent/
Respondent
PRAYER: Civil Revision Petition filed under Article 227 of the Constitutional
of India, to call for the records pertaining to the order passed in I.A.No.4 of
2022 in H.M.O.P.No.150 of 2020 dated 10.08.2022 on the file of the learned
Family Court, Karur and set aside the same by allowing this Civil Revision
Petition.
For Petitioners : Mr.K.Sivabalan
For Respondent : No appearance
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C.R.P. (MD) No. 2033 of 2022
ORDER
This Civil Revision Petition is filed by the petitioner/wife aggrieved by the dismissal of I.A.No.4 of 2022 in H.M.O.P.No.150 of 2020, dated 10.08.2022, on the file of the Family Court, Karur.
2. When the trial in the case was over and was posted for arguments, the original petitioner/wife herself filed this interlocutory application for amendment of pleadings. Two specific amendments are prayed in the pleadings. It is her case that in the description of the original petition in the cause-title, the provision of law is mentioned as 13(ib) whereas, it should have been mentinoed as 13(i-a) of the Hindu Marriage Act, 1955. It is her further case that apart from divorce, the petitioner is also prayed for an annulment as per Section 12 of the Act. It is her case that the marriage was not at all consummated, on account of the inability of the respondent to lead the sexual life. The term impotency is not specifically mentioned, therefore, the petitioner prayed one more amendment to include the sentence in paragraph 6 of the petition, which reads as follows:-
https://www.mhc.tn.gov.in/judis 2/8 C.R.P. (MD) No. 2033 of 2022 “The respondent is impotent and the marriage is not consummated and the marriage is null and void.” The said application was considered by the Trial Court and is dismissed. However, while dismissing the application, the Trial Court opined that after the trial if the provision of law is changed, then that would change the very case itself. It is also further opined that allowing the other amendment relating to impotency would also change the very nature of the case itself and as such cannot be permitted after the trial.
3. The learned Counsel for the petitioner would assail and impugn the order of Trial Court submit that the Trial Court ought to have allowed the application.
4. Even though the notice is served, there is no appearance of the respondent and he is not defending the Civil Revision Petition.
5. I have considered the submissions made on behalf of the petitioner and perused the material records of the case.
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6. On a perusal of the original petition filed by the petitioner/wife, the very many paragraphs of averments are clearly intended to make out a case for divorce on the ground of cruelty. The petitioner has pleaded cruelty in very many words. The petition does not relate to desertion. Therefore, it is only by way of typographical error, the provision of law is mentioned as 13(ib) instead of 13(i-a), the same can be permitted to be corrected at any stage. That would not alter the nature of the case. As a matter of fact, the parties have understood the charge and have gone to the trial with the specific understanding that the case is only for cruelty and not for desertion. Therefore, even the petitioner can argue it as a typographical error and could have proceeded with the argument even without the amendment. Therefore, when the amendment is sought for only by way of abundant caution, the Trial Court ought not to have rejected the same. It is not the stage of the amendment which alone should be looked into, but what is the contention and prejudice to the parties should also be looked into. An obvious typographical error can always be corrected even at the appellate stage, especially when the same does not cause any prejudice to the other side. As far as the second limb of the amendment as to the inclusion of the sentence is concerned, as a matter of fact, as per Section 12(a) of the Act, the marriage would be voidable if the marriage is not consummated owing to the impotency of the respondent. As a matter of fact, the petitioner has pleaded https://www.mhc.tn.gov.in/judis 4/8 C.R.P. (MD) No. 2033 of 2022 as follows in paragraph 6:-
“The marriage of the petitioner and respondent was taken place on 08.09.2019 at Arulmighu Rathnagreeswarar Sannathi, Ayyarmalai, Kulithalai under the control of H.R & CE. The receipt was issued by the Executive Officer. The petitioner and the respondent signed in the declaration on the back of the receipt. The petitioner's parents and the mother of the respondent have signed in the receipt. The petitioner was presented 10 sovereigns of jewels and 3 sovereigns were presented to the respondent. The Notary attested Xerox copy of the marriage receipt issued by Arulmighu Rathnagreeswarar Temple, Ayyarmalai, Kulithalai is herewith filed as document No.2. After the marriage the petitioner and the respondent started their family life at the respondent's sister's house for two days at Thanthonimalai. At that time nuptial function (Kjyput[) was arranged. The respondent was not interested in sexual relationship and during the night itself the respondent started screaming, speaking about his money needs and compelled the petitioner to come down to Seethakattanoor. Subsequent days also the respondent did not any evince any interest having any sex with the petitioner. The petitioner as a true Hindu wife was waiting that the respondent would retrieve himself and lead a peaceful and fondful relationship will emerge. But to her dismay the respondent https://www.mhc.tn.gov.in/judis 5/8 C.R.P. (MD) No. 2033 of 2022 did not make any attempt or try either physically or mentally. The petitioner even did not touch the respondent and he used to shout with abusive language. The petitioner reported her sorrowful life and her dreams of peaceful happy life have been demolished by the respondent by his inability in sex to his elder sister at Thanthonimalai. Even the advise of the respondent elder sister has not given any fruitful result and the respondent continued his non performance. Hence the marriage is not consummated which is very important for completion of marriage. Due to non consummation the marriage is not valid.” (emphasis supplied)
7. Therefore, when the petitioner has pleaded as to contents of Section 12 of the Act in so many words, the presence or absence of the particular word 'impotency' will not make any difference, especially, when the allegation is one and the same. Therefore, if the petitioner now wants to specifically raised the same as rightly contended by the Trial Court then an opportunity has to be given to the other side for filing additional counter-affidavit and thereafter, it would result in protracting the proceedings and therefore, need not be permitted at this stage. Therefore, when the petitioner has made the pleadings to the best of his ability in paragraph 6 and when the trial is concluded, the petitioner can https://www.mhc.tn.gov.in/judis 6/8 C.R.P. (MD) No. 2033 of 2022 very well argue the matter with contents of paragraph 6 itself. Though this Court is unable to agree with the reasoning adopted by the Trial Court, however the application of the petitioner is to be disposed of for the above reasons mentioned by this Court.
8. Accordingly, this Civil Revision Petition is disposed of with the above observations. Consequently, the connected Miscellaneous Petition is closed. No costs.
01.07.2024
Index : Yes/No
NCC : Yes/No
PKN
To
The Section Officer,
Vernacular Records,
Madurai Bench of Madras High Court,
Madurai.
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C.R.P. (MD) No. 2033 of 2022
D.BHARATHA CHAKRAVARTHY, J.
PKN
C.R.P. (MD) No. 2033 of 2022
01.07.2024
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