- 1 - NC: 2025:KHC:8453 WP No. 713 of 2025 C/W WP No. 522 of 2025 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 24TH DAY OF FEBRUARY, 2025 BEFORE THE HON'BLE MR JUSTICE PRADEEP SINGH YERUR WRIT PETITION NO.713 OF 2025 (GM-FC) C/W WRIT PETITION NO.522 OF 2025 (GM-FC) IN WP.No.713/2025: BETWEEN: DR.V.SUNITHA W/O.B.P.SHIVASHANKAR AGED ABOUT 43 YEARS R/AT NO.320/2, 6TH MAIN SHAMANNA LAYOUT BANASAWADI BENGALURU-560 043 …PETITIONER (BY SRI N.VAGEESH, ADVOCATE) AND: DR.B.P.SHIVASHANKAR S/O.N.PAPANNA AGED ABOUT 46 YEARS R/AT NO.31, SIHIGOODU SURYA HERMITAGE LAYOUT DODDABALLAPURA MAIN ROAD NEAR SURADENAPURA Z EARTH VILLAS, RAJANUKUNTE BENGALURU-560 027 …RESPONDENT (BY SMT.VAISHALI HEGDE, ADVOCATE) THIS WRIT PETITON IS FILED UNDER ARTICLE 227 OF THE COSNTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 10.12.2024 PASSED ON IA.NO.30 IN M.C.NO.979/2015 Digitally signed by GAVRIBIDANUR SUBRAMANYA GUPTA SREENATH Location: High Court of Karnataka - 2 - NC: 2025:KHC:8453 WP No. 713 of 2025 C/W WP No. 522 of 2025 BY III ADDITIONAL PRINCIPAL JUDGE, FAMILY COURT, BENGALURU VIDE ANNEXURE-H. IN WP.NO.522/2025: BETWEEN: DR.V.SUNITHA W/O.B.P.SHIVASHANKAR AGED ABOUT 43 YEARS R/AT NO.320/2, 6TH MAIN SHAMANNA LAYOUT BANASAWADI BENGALURU-560 043 ...PETITIONER (BY SRI N.VAGEESHA, ADVOCATE) AND: DR.B.P.SHIVASHANKAR S/O.N.PAPANNA AGED ABOUT 46 YEARS R/AT NO.31, SIHIGOODU SURYA HERMITAGE LAYOUT DODDABALLAPURA MAIN ROAD NEAR SURADENAPURA Z EARTH VILLAS, RAJANUKUNTE BENGALURU-560 027 ...RESPONDENT (BY SMT.VAISHALI HEGDE, ADVOCATE) THIS WRIT PETITON IS FILED UNDER ARTICLE 227 OF THE COSNTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 10.12.2024 PASSED ON IA.NO.25 IN M.C.NO.5328/2015 BY III ADDITIONAL PRINCIPAL JUDGE, FAMILY COURT, BENGALURU VIDE ANNEXURE-H. THESE PETITIONS ARE COMING ON FOR FPRELIMINARY HEARING IN 'B' GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: - 3 - NC: 2025:KHC:8453 WP No. 713 of 2025 C/W WP No. 522 of 2025 CORAM: HON'BLE MR JUSTICE PRADEEP SINGH YERUR ORAL ORDER These petitions are filed by the wife, who is defending the divorce petition in MC.No.979/2015 filed by the husband under Section 13(1)(ia) of the Hindu Marriage Act, 1955 (for short, 'the Act') and she has also initiated a petition in MC.No.5328/2015 for restitution of conjugal rights under Section 9 of the Act against the husband. 2. When such being the case, the wife filed two similar applications in the aforementioned two proceedings, under Order VI Rule 17 read with Section 151 of CPC seeking amendment of pleadings to incorporate a paragraph to show that she was having a cordial and happy relationship with her husband and she was having regular physical relationship with the husband and that as on the date of filing of the divorce petition by the husband i.e. on 28.02.2015, they were living under the same roof and were constantly, having physical relationship till her father received the notice from the - 4 - NC: 2025:KHC:8453 WP No. 713 of 2025 C/W WP No. 522 of 2025 Family Court in the second address mentioned in the divorce petition. It is also stated in the amendment application that the husband had neither informed her about filing of the divorce petition nor refrained from physical relationship either before filing of the petition or till discovery of filing of the petition by the wife. It is also stated that the wife had constant physical relationship with the husband and he has not condoned the act of alleged cruelty under Section 23 of the Act and that the husband has played fraud on the wife by initiating the petition despite living under the same roof by mentioning the same address. 3. Upon consideration of the application on merits, learned Judge of the Family Court dismissed the application by rejecting the incorporation of the amendment sought for by the wife. 4. It is the vehement contention of learned counsel for wife that the amendment so sought for by the wife is very crucial and important for adjudication of the matter - 5 - NC: 2025:KHC:8453 WP No. 713 of 2025 C/W WP No. 522 of 2025 before the Family Court. However, learned Judge of the Family Court has not considered the application appropriately and not taken the relevancy of the contents of the amendment. He contends that the law laid down by the Hon’ble Apex Court with regard to amendment being allowed at any stage of the proceedings so far as it does not cause any hardship or inconvenience or divergent view of 180 degree in the amendment, which would hamper the case of the husband. On facts and circumstances of the case, it is admitted by the husband that as on the date of initiation of divorce petition, the wife was residing and living under the same roof, which is apparently seen in the cause-title of the divorce petition and neither the notice was served on the wife by hand nor informed, it was only received by the father in the alternative address mentioned in the petition. 4.1 It is further contended by learned counsel for wife that once there is a cohabitation between the wife and the husband, the question of husband filing a divorce - 6 - NC: 2025:KHC:8453 WP No. 713 of 2025 C/W WP No. 522 of 2025 petition would be barred. Therefore, it is his contention that the husband cannot take advantage of his own wrong as contemplated under Section 23(1)(a) of the Act. However, he contends that this aspect has not been pleaded, more specifically with regard to cohabitation, conjugal and physical relationship between the wife and the husband and that the husband has played fraud on her. He also contends that all these aspects have been narrated by the wife in her evidence and so also in the cross-examination of the husband to large extent. He contends that the evidence in both the matrimonial proceedings has been concluded and the matter is now set down for judgment. Nevertheless, the application for amendment came to be filed when the matter was set down for arguments. Thereafter, the application came to be dismissed and the matter is presently set down for judgment. 4.2 It is the vehement contention of learned counsel for wife that he is not inclined to lead any further - 7 - NC: 2025:KHC:8453 WP No. 713 of 2025 C/W WP No. 522 of 2025 evidence. The amendment sought for is necessary for the reason that the pleadings are the fulcrum of any petition. Hence, if that is not pleaded, then he would not be permitted to raise his plea in the course of evidence and rely upon the evidence adduced by him. Therefore, he contends that the application being dismissed by learned Judge of the Family Court is illegal, perverse, arbitrary and the same requires to be allowed, in view of the Hon’ble Apex Court in the case of Dinesh Goyal v. Suman Agarwal (Bindal) reported in AIR 2024 SC 4779. On these grounds, he seeks to allow the petitions and set- aside the impugned order passed by the Family Court in both the cases. 5. Per contra, Smt.Vaishali Hegde, learned counsel for husband in both the petitions, vehemently contends that the impugned order passed by the Family Court is sustainable in law and the same does not call for interference as it is a well reasoned and considered order. She vehemently contends that the divorce petition was - 8 - NC: 2025:KHC:8453 WP No. 713 of 2025 C/W WP No. 522 of 2025 filed by the husband on 28.02.2015. The objections statement to the same is filed and thereafter, the petition for restitution of conjugal rights is filed by the wife against the husband, which are clubbed and being tried together before the same Court. It is further contended by learned counsel for husband that the petition filed by the husband was posted for passing of the judgment on 16.11.2021 and thereafter, upon recall, the matter was restored to its original stage and the evidence came to be adduced by both parties. Thereafter, it was posted for recording of further evidence and post which, the matter was posted for argument of the parties. 5.1 It is contended by learned counsel that despite the wife taking several adjournments, the matter was not proceeded further and dilatory practice was adopted time and again, the application was filed and counsels were being changed several times and at which time, the matter was adjourned by imposing costs on her. - 9 - NC: 2025:KHC:8453 WP No. 713 of 2025 C/W WP No. 522 of 2025 5.2 It is contended that on 17.09.2024, when the matter was posted for filing written arguments, the application in IA.No.30 came to be filed seeking amendment of pleadings in both the cases. Therefore, she contends that this application under Order VI Rule 17 of CPC is filed at a very belated stage i.e. when the matter was posted for arguments of the wife in the proceedings before the Family Court and the same cannot be allowed as per the proviso to Order VI Rule 17 of CPC, which reads as under: "17. xxxxxxxxxxxxxxxx Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial." 5.3 Learned counsel contends that to come within the bracket of showing any sympathy or pragmatic approach for the application being allowed, it should have been with due diligence by the wife in filing the application - 10 - NC: 2025:KHC:8453 WP No. 713 of 2025 C/W WP No. 522 of 2025 for amendment. In the present case on hand, admittedly, the application for amendment is filed at the stage when the matter was posted for arguments of the wife, who was respondent before the Family Court. 6. Having heard learned counsel for wife and learned counsel for husband and on a careful perusal of the provisions for amendment under Order VI Rule 17 of CPC, it is clearly seen that there is no embargo for any application being allowed after trial is commenced unless there is due diligence, which requires to be shown by the parties seeking such amendment. The fact remains that this application is filed after almost 10 years; it is not the case of the wife that she was not aware of the proceedings; she has changed several Lawyers; she has initiated not only the petition for restitution of conjugal rights petition, she has also defended the divorce petition filed by the husband; she has led in evidence; she has stepped into the witness box and she has cross-examined her husband through her counsel. - 11 - NC: 2025:KHC:8453 WP No. 713 of 2025 C/W WP No. 522 of 2025 7. The fundamental requirement, while filing the application under Order VI Rule 17 of CPC is that it has to be filed well within the time as contemplated under the provisions of Code of Civil Procedure. No doubt, it is true that not only in general circumstances, but all amendments should be allowed and the Court should take a pragmatic view to allow the application for amendment unless there is hardship, inconvenience, grave injustice or damage caused to the objecting party. 8. In the present case on hand, the wife who is defending the divorce petition and has filed the petition for restitution of conjugal rights, has been contesting the matter for almost 10 years and changed several Lawyers. However, now, the application for amendment is filed to incorporate a paragraph to show that she had good and cordial relationship with her husband and she had conjugal and physical relationship with her husband even as on the date of filing of the divorce petition and continued even after filing of the divorce petition. These aspects have - 12 - NC: 2025:KHC:8453 WP No. 713 of 2025 C/W WP No. 522 of 2025 been pleaded in her objections statement so also in the petition for restitution of conjugal rights. However, now it is contended that the above said pleadings are not included in the objections statement and in the petition for restitution of conjugal rights and if such a pleading would not affect the rights of the husband, the same could be allowed. But in the present case, she wants to incorporate a paragraph in the pleadings to show that she had a physical relationship with the husband even after filing of the petition, which in my humble opinion, cannot be accepted and cannot be permitted as not only it would be a bar under the proviso to Order VI Rule 17 of CPC as it is necessary and incumbent upon the wife that despite due diligence, she was unable to raise this plea or take this amendment before commencement of trial. Even for the sake of argument, she was unable to incorporate certain pleadings at the stage of trial having commenced so far as it does not hinder, hamper, destroy and damage the case of the husband, it could have been allowed, but in the present facts and circumstances of the case, the very - 13 - NC: 2025:KHC:8453 WP No. 713 of 2025 C/W WP No. 522 of 2025 aspect of her having conjugal and physical relationship with the husband is the crux of the matter, which probably could directly affect the husband on the amendment so being sought. 9. The fact that the wife does not intend to lead any further evidence itself is eminent that all the materials that are required to defend and prove her case are brought on record by way of pleadings and by way of evidence led by her. 10. Under the circumstances, when the wife does not want to lead any further evidence, this Court is not inclined to accept the theory put-forth by the wife that despite due diligence, she was unable to plead the amendment at the relevant stage of the case. Therefore, this is a clear case, where permitting incorporation of the amendment by allowing the application would damage and prejudice the case of the husband. Therefore, I am not inclined to accept the plea and prayer made by learned counsel for wife. Accordingly, the said aspect has been - 14 - NC: 2025:KHC:8453 WP No. 713 of 2025 C/W WP No. 522 of 2025 clearly appreciated and dealt with by learned Judge of the Family Court by dismissing the application. 11. It is also relevant to note that the petitions are pending since 2015 before the Family Court and when both the husband and the wife had instituted the petition, they were aged 35 and 36 years respectively and presently, their age is 45 and 46 years respectively. However, they have lost 10 precious years in this litigation without there being any cohabitation after filing of the cases. 12. Under the circumstances, I pass the following: ORDER i) These petitions are dismissed; ii) In view of the fact that the petitions before the Family Court are almost 10 years old and the present stage of the cases is for judgment, I deem it appropriate to direct the jurisdictional Family Court to provide an opportunity to the learned counsel for wife in both the cases to address the - 15 - NC: 2025:KHC:8453 WP No. 713 of 2025 C/W WP No. 522 of 2025 arguments and also to learned counsel for husband; iii) The Family Court shall decide the matter within two months from the date of receipt of a copy of this order under the special facts and circumstances of the case i.e. before beginning of the Summer Vacations, 2025; iv) Learned counsel for wife is permitted to take all the contentions urged herein in accordance to the pleadings and the evidence adduced and also all the legal options that are available to him; v) Parties are requested to cooperate with the Court for expeditious disposal as stated hereinabove in a time bound manner. Sd/- (PRADEEP SINGH YERUR) JUDGE LB List No.: 1 Sl No.: 41