Madhya Pradesh High Court
Smt. Babita Bai vs Radheshyam Sharma on 28 June, 2016
1 W.P.No.4906/2015
(Smt. Babita Bai Vs. Radheshyam Sharma)
28.6.2016.
Shri G.S.Sharma, learned counsel for the petitioner.
Shri Sanjay Mishra, learned counsel for the respondent.
Petitioner has filed this petition challenging the order dated 8.7.2005 whereby an application under Order 14 Rule 5 CPC filed by the non-applicant (petitioner) has been dismissed by the Court of Additional District Judge, Gohad, Distt. Bhind, in matrimonial case No.19/2014 HMA.
The applicant (respondent before this Court) has filed an application under Section 12(1)(A) of the Hindu Marriage Act for declaring the marriage of the applicant with non-applicant (present petitioner) as null and void on the ground of impotency of the non-applicant.
Learned counsel for the non-applicant (petitioner) moved an application under Order 14 Rule 5 CPC for framing of additional issue, namely whether the application moved by the applicant under Section 12(1)(A) of the Hindu Marriage Act is barred by limitation.
Learned trial Court has held that the said additional issue cannot be framed inasmuch as evidence of the applicant was completed on 23.3.15 and thereafter non-applicant has filed affidavits under Order 18 Rule 4(2) of CPC in her defence and cross-examination of non-applicant's witnesses is about to take place. It is further mentioned that the said application for declaring the marriage as null and void was filed in the year 2010, and therefore, the application under Order 14 Rule 5 CPC at such belated stage is not maintainable.
This Court does not find any irregularity or illegality in the order passed by the learned Trial Court inasmuch as order 14 Rule 5 vests power to amend and strike out issues, so also framing of additional issues for determining the matter in 2 W.P.No.4906/2015 controversy between the parties. In the present case, the controversy between the parties is whether the non- applicant/wife is suffering from impotency making a ground under Section 12 of the Hindu Marriage Act. For this, parties are required to adduce their own evidence including the medical evidence. The issue of limitation is not germane to the controversy.
Learned counsel for the respondent Shri Sanjay Mishra submits that petitioner has filed false and frivolous case alleging cruelty after filing of application under Section 12(1)(A) of the Hindu Marriage Act and is trying to harass the petitioner by making such frivolous application because when the issues were framed, no objection was taken by the learned counsel for the non-applicant (petitioner), and therefore, framing of additional issue at this stage will only result in unnecessarily delaying the proceedings.
In view of this matter that the application for dissolution of marriage was filed in the year 2010, issues were framed, reply was filed, evidence of the applicant was led, his witnesses were cross-examined and now evidence of non-applicant has been filed, there is no justification in framing additional issue of the application being barred by limitation. In any case, it is apparent that to declare the marriage as null and void, pleadings of the parties and the grounds raised to seek such kind of declaration are germane and framing of additional issue at this belated stage should not be permitted to delay and defeat the just adjudication of the lis. Thus, writ petition fails and is dismissed.
(Vivek Agarwal) Judge ms/-