- 1 - HC-KAR NC: 2025:KHC:30371 WP No. 25810 of 2022 C/W WP No. 4642 of 2023 WP No. 4711 of 2023 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 5TH DAY OF AUGUST, 2025 BEFORE THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI WRIT PETITION NO. 25810 OF 2022 (GM-FC) C/W WRIT PETITION NO. 4642 OF 2023 (GM-FC) WRIT PETITION NO. 4711 OF 2023 (GM-FC) IN WP No. 25810/2022 BETWEEN: SRIDHAR S/O LT.MANJEGOWDA AGED ABOUT 38 YEARS SPERVIOSR, ID NO 6787, TVS COMPANY KADAKOLA MYSORE -571 311 …PETITIONER (BY SRI. KUMARA L., ADVOCATE) AND: SMT. SANGEETHA R., W/O SRIDHAR AGED ABOUT 32 YEARS R/AT SRI VENAKTESHWARA NILAYA OPP. SUB JAIL COURT ROAD HOUSING BOARD CHAMARAJANGARA -562 159 AND ALSO AT NO.114/11, CHIKKAMMA NILAYA BESTARA BLOCK, 5TH CROSS SUYEJ FROM ROAD, KANAKAGIRI MYSORE …RESPONDENT (BY SRI. ABUBACKER SHAFI, ADVOCATE) Digitally signed by MEGHA MOHAN Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:30371 WP No. 25810 of 2022 C/W WP No. 4642 of 2023 WP No. 4711 of 2023 THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO SET ASIDE THE IMPUGNED ORDER DATED 15.09.2022 ON IA NO. 5 FILED UNDER SECTION 151 OF CPC FOR CONDUCTING THE DNA TEST TO ASCERTAIN THE PATERNITY OF ALLEGED MINOR SON ON POORVAJ IN ANNEXURE- A PASSED BY HONBLE 2ND ADDL. FAMILY JUDGE AT MYSORE IN M.C.NO. 539/2021. IN WP NO. 4642/2023 BETWEEN: SANGEETHA R., W/O SRIDHAR, AGED ABOUT 32 YEARS, VEERABADRA NILAYA, DOOR NO.373, 3RD CROSS, DEVANGA STREET, CHAMARAJANAGARA, PRESENT ADDRESS, NO.1110, LAKSHMIDEVI KRUPA, 4TH MAIN, 28TH CROSS, VIDYARANYAPURAM, MSYORE -570 008 ...PETITIONER (BY SRI. ABUBACKER SHAFI, ADVOCATE) AND: SRIDHAR S/O LATE MANJEGOWDA, AGED ABOUT 39 YEARS, NO.465/60, BAGUR ROAD, GANESH NAGAR, CHANNARAYA PATNA POST, CHANNARAYA PATNA (RURAL) HASSAN- 573 116. WORKING AT SUPERVISOR, TVS MOTOR COMPANY, EMPLOYEE ID NO.6787, APACHE ENGINE DEPARTMENT, POST BOX NO.1, BYATHAHALLI, KADAKOLA POST, MYSURU. ...RESPONDENT (BY SRI.KUMARA L., ADVOCATE FOR SMT.MOHAN KUMARI B.V., ADVOCATE) - 3 - HC-KAR NC: 2025:KHC:30371 WP No. 25810 of 2022 C/W WP No. 4642 of 2023 WP No. 4711 of 2023 THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE ORDER DATED: 04.02.2023 ON I.A.NO.7 PASSED UNDER ORDER 1 RULE 10 R/W SECTION 151 OF CPC SEEKING PERMISSION TO IMPLEAD 1.HEMANT KUMAR G (2).SHIVAKUMAR AS R2 AND 3 IN MC.NO.539/2021 ON THE FILE OF PRL 2ND ADDL. FAMILY COURT AT MYSORE VIDE ANNEXURE-N. IN WP NO. 4711/2023 BETWEEN: SANGEETHA R., W/O SRIDHAR, AGED ABOUT 32 YEARS, VEERABADRA NILAYA, DOOR NO.373, 3RD CROSS, DEVANGA STREET, CHAMARAJANAGARA PRESENT ADDRESS NO.1110, LAKSHMIDEVI KRUPA, 4TH MAIN, 28TH CROSS, VIDYARANYAPURAM, MYSORE-570 008. ...PETITIONER (BY SRI. ABUBACKER SHAFI, ADVOCATE) AND: SRIDHAR S/O LATE MANJEGOWDA, AGED ABOUT 39 YEARS, NO.465/60, BAGUR ROAD, GANESH NAGAR, CHANNARAYA PATNA POST, CHANNARAYA PATNA (RURAL), HASSAN-573116. WORKING AT SUPERVISOR, TVS MOTOR COMPANY, EMPLOYEE ID NO.6787, APACHE ENGINE DEPARTMENT, POST BOX NO.1, BYATHAHALLI, KADAKOLA POST, - 4 - HC-KAR NC: 2025:KHC:30371 WP No. 25810 of 2022 C/W WP No. 4642 of 2023 WP No. 4711 of 2023 MYSURU. ...RESPONDENT (BY SRI.KUMARA L., ADVOCATE FOR SRI.MOHAN KUMARI B.V., ADVOCATE) THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASHING THE ORDER DATED 04.02.2023 ON I.A NO.6 PASSED UNDER ORDER 6 RULE 17 R/W SECTION 151 OF CPC SEEKING TO AMEND THE PETITION IN MC NO.539/2021 ON THE FILE OF PRL. 2ND ADDL FAMILY COURT AT MYSORE VIDE ANNEXURE- M. THESE PETITIONS, COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE SMT. JUSTICE LALITHA KANNEGANTI ORAL ORDER IN WP.No.4711/2023 Aggrieved by the order passed in I.A.No.VI in M.C.No.539/2021 dated 04.02.2023 by the Principal II Additional Family Court, Mysuru, the petitioner/wife has filed WP.No.4711/2023. 2. The parties are referred to as husband and wife for the sake of convenience. 3. The facts of the case are that initially the wife had filed M.C.No.59/2016 under Section 9 of the Hindu Marriage Act1955, seeking restitution of conjugal rights on the file of the Senior Civil Judge and CJM at Chamarajanagar. That petition - 5 - HC-KAR NC: 2025:KHC:30371 WP No. 25810 of 2022 C/W WP No. 4642 of 2023 WP No. 4711 of 2023 came to be allowed and the husband had filed MFA.No.8083/2022 and the same is pending consideration. Initially, the husband had filed M.C.No.102/2018 on the file of the Senior Civil Judge and JMFC at Channarayapatna and later, the same was transferred to the Court of II Additional Principal Family Court at Mysore and the same was renumbered as M.C.No.539/2021. The M.C. is filed by the husband under Section 13(1) (ia) (ib) & (i) of the Hindu Marriage Act, 1955, to dissolve the marriage dated 03.02.2013 held between the petitioner and respondent by way of granting decree of divorce on the ground of adultery, cruelty and desertion and allow the instant petition in favour of the husband. After the wife is cross-examined in part, at that stage, three applications came to be filed. One is I.A.No.V stating that the wife is living in adultery and he is not the biological father of the child, as such, DNA test has to be conducted. I.A.No.VII is filed under Order 1 Rule 10 read with Section 151 of CPC to implead two persons, who are having illicit relationship with the wife according to the husband to be impleaded as respondents. 4. I.A.No.VI is filed seeking permission to amend the petition by adding schedule mentioned averments as additional - 6 - HC-KAR NC: 2025:KHC:30371 WP No. 25810 of 2022 C/W WP No. 4642 of 2023 WP No. 4711 of 2023 paragraphs, by incorporating the names of those persons with whom the wife is having illicit relationship and that he is not the biological father of the child. The order passed in I.A.No.VI is impugned in this petition. The Family Court had dismissed the I.A.No.V filed by the husband seeking an order to conduct the DNA test for ascertaining the paternity of the minor son and had allowed I.A.No.VII filed by the husband under Order 1 Rule 10 of CPC seeking permission to implead the respondents and allowed I.A.No.VI filed by the husband under Order 6 Rule 17 of CPC on cost of Rs.3,000/- payable to the wife. 5. While allowing I.A.No.VI, the Family Court had carefully gone through the original pleadings of the husband, the evidence already on record and also the particulars of proposed amendment. Since the case itself is filed for divorce on the ground of adultery, it appears that the facts such as the wife having extra marital relationship with some other persons, sought to be incorporated by way of proposed amendment is very much necessary for the purpose of determining the real question in controversy between the parties. Further, the alleged subsequent acts of the wife which tantamount to matrimonial cruelty are also relevant for the adjudication of the - 7 - HC-KAR NC: 2025:KHC:30371 WP No. 25810 of 2022 C/W WP No. 4642 of 2023 WP No. 4711 of 2023 divorce petition which is also filed on the ground of cruelty. Hence, the Court held that the husband has made out grounds to permit him to amend the petition. The Family Court had also considered the judgment of the Hon'ble Supreme Court in case of Vidya Bai Vs. Padma Latha (Civil Appeal No.7251/2008) and the judgments of the High Court of Bombay and High Court of Allahabad. The Family Court had come to the conclusion that the proposed amendments are necessary for the purpose of determining the real question in controversy between the parties and if the application is not allowed, then the husband will be put to untold hardship as he will be totally prevented from producing some material particulars regarding the alleged act of adultery and cruelty by the wife. In such an eventuality, the injury that may be caused to the husband cannot be compensated in monetary terms. On the other hand, the inconvenience, if any, that may be caused to the wife due to the amendment at this stage can be compensated by awarding reasonable cost. Accordingly, the Family Court had allowed I.A.No.VI on cost of Rs.3,000/- payable to the wife. - 8 - HC-KAR NC: 2025:KHC:30371 WP No. 25810 of 2022 C/W WP No. 4642 of 2023 WP No. 4711 of 2023 6. Learned counsel appearing for the wife submits that the Family Court ought not to have allowed the application at a belated stage and allowing this application amounts to taking away the defense that is available to the party. It is submitted that if the party says that particular facts were not in his knowledge and the same could not be brought to the notice of the Court in spite of due diligence, then the amendment can be allowed. It is submitted that none of these grounds are satisfied and at the fag end of the trial, the Court cannot allow such an application and the same is bad in law. 7. Learned counsel appearing for the husband submits that he has filed the petition seeking divorce on the ground of desertion, cruelty and adultery. In the petition, he has stated that the wife is living in adultery. It is submitted that the wife had filed M.C.No.59/2016 under Section 9 of the Hindu Marriage Act seeking restitution of conjugal rights. During the cross-examination of the wife on 20.05.2020, when she was confronted with Exs.R2 and R7, the photos of the persons with whom she is having illicit relationship, at one time she has stated that they are her friends and another time she has stated that they are her relatives which shows that she is - 9 - HC-KAR NC: 2025:KHC:30371 WP No. 25810 of 2022 C/W WP No. 4642 of 2023 WP No. 4711 of 2023 having an illicit relationship. As such, the husband has come up with the application seeking amendment of the pleadings. It is submitted that the Court has rightly observed that if the amendment is not allowed, the husband would be put to irreparable loss and hardship. It is submitted that when a petition is filed seeking divorce on the ground of adultery, unless and until the person with whom he is alleging the illicit relationship is made a party to the petition, it is not maintainable. Such a stand is already taken by the wife. In those circumstances, if this application is not allowed, it would cause lot of hardship. The Court had rightly considered all these aspects. He further submits that mere delay in filing the application cannot be a ground and on technical grounds, the Court cannot dismiss the application seeking amendment of the petition. It is also submitted that in the pleadings, there is already a foundation with regard to the adultery, cruelty and desertion. Now, by way of this application, he is not introducing any new case and as he has come to know about these people recently, they were made as parties to this petition. If this amendment is allowed, no hardship would be caused to the wife, but if the same is not allowed, it would cause irreparable - 10 - HC-KAR NC: 2025:KHC:30371 WP No. 25810 of 2022 C/W WP No. 4642 of 2023 WP No. 4711 of 2023 loss to the husband. It is submitted that the Family Court had rightly considered and allowed the petition and there are no grounds to interfere with the order passed by the Family Court. 8. Having heard the learned counsels on either side, perused the entire material on record. The husband has filed the M.C. seeking divorce on the ground of adultery, cruelty and desertion. This Court has perused the petition. In the entire petition, the husband has not stated anything pertaining to the adulterous life that the wife is living and he has also stated about the birth of the child and he has never said that he is not the biological father of the child in the original petition. Now, by way of this amendment, he wants to add that the wife is living in an adulterous relationship with two persons and the child is not born to him. This Court has perused the affidavit that is filed by the husband. It is very important to look at paragraph Nos.3, 4 and 5 of the affidavit which reads as follows: "3. I submit that, I have filed instant case for decree of divorce. I have filed instant case on the grounds of desertion, cruelty and adultery. I further submit that, respondent is living in adulterous life prior to marriage and after the marriage. The respondent having illicit relationship with i) Hemanth Kumar.G., S/o.Late. Govindraj, Aged about 33 years, Residing at No.3595, Lakshmi Temple Street, Ashoka Road, Veerana Gere, Lashkar Mohalla, Mysore ii) ShivaKumar, Fathers Name not known, Aged about 34 years, No.1094, 2nd Phase, - 11 - HC-KAR NC: 2025:KHC:30371 WP No. 25810 of 2022 C/W WP No. 4642 of 2023 WP No. 4711 of 2023 Vijayanagar, 4th Stage, Mysore. ii) Abishek address not known, During cross examination of Pw-1 dated 20.5.2020 in M.C.No.59/2016 on the file of senior civil judge and jmfc at chamrajnagar, on confrontation Ex.R2 to Ex.R7 got marked. I have produced same in my examination in chief in the instant case & got marked as Ex.P5 (6). The male persons appears in Ex.P5 (6) are Hemanth Kumar. G., Shiva Kumar and Abishek. I have suggested respondent is having illicit relationship with above persons in M.C.No.59/2016 on the file of senior civil judge and jmfc at chamrajnagar as narrated in the amended paras. Hence adding averments with regard to the adulterous life of respondent is essential in order to prove my case. 4. I submit that, after filing this petition I was subjected to cruelty by the hands of respondent as narrated in the amended para's. Hence adding averments with regard to the cruelty of the respondent as narrated in the amended para's very essential to prove cruelty of the respondent. 5. It is submitted that, since intending amended paras are subsequent developments after filing the instant case, I was not able to add the same at the time of filing instant case. I have recently find out the address of above male persons appears in Ex.P5 (6) & hence I was not able to insert above averments narrated in the amended para's at the time of filing of the instant case. Hence not averring amended averments para's at the time of filing of instant petition is bona fide one & not intentional." 9. In the affidavit, the husband has stated that he has come to know about these persons as he has cross-examined the wife in the petition filed seeking restitution of conjugal rights on 20.05.2020 and this present application is filed on 11.10.2022. Even in the paragraphs that are to be added also nothing has been stated as to when the husband has come to know about it and why he has not mentioned earlier. The - 12 - HC-KAR NC: 2025:KHC:30371 WP No. 25810 of 2022 C/W WP No. 4642 of 2023 WP No. 4711 of 2023 original M.C. is filed in the year 2018, thereafter it was transferred to II Additional Family Court at Mysore and renumbered as M.C.No.539/2021. Right from the year 2020 till the end of 2022, the husband has kept quiet and though in the prayer, the husband has sought for dissolution of marriage, he has mentioned all the provisions pertaining to desertion, cruelty and adultery, without making the adulterers as respondents to the petition, he is pursuing this litigation from the year 2018. After 4 years, he has come up with this application. It is the contention that delay cannot be a ground and it is also stated that Court has to look at the substantial justice to be rendered to the parties, but on hyper technical grounds the application cannot be dismissed. While allowing an application seeking amendment, the Court has to balance the interest of both the parties. The party who has come up with an application seeking amendment cannot be permitted to raise altogether a new ground. In the original petition, it was never the case of the husband that he is not the biological father of the child. Now, by virtue of this amendment, he wants to add those paragraphs. The trial has commenced long back. There are no grounds as to why he is moving this application in the year - 13 - HC-KAR NC: 2025:KHC:30371 WP No. 25810 of 2022 C/W WP No. 4642 of 2023 WP No. 4711 of 2023 2022. Except stating that as on the date of filing of the petition i.e., 2018, these grounds are not known to him. But these grounds are as well known to him in the year 2020 and still he has not done anything. In the cross-examination, when it is suggested that such an application is not maintainable without making the adulterer as a party to the proceedings, he has come up with this application. By way of an amendment, this Court cannot permit the party to take away the defense that is available to the other party and these kinds of belated applications cannot be allowed. The Family Court held that by imposing cost of Rs.3,000/- it can be compensated. In the considered opinion of this Court, it cannot be compensated by imposing cost of Rs.3,000/- payable to the wife. 10. According to the husband, he came to know about this on 20.05.2020 and the application is filed on 11.10.2022. When he is fighting a litigation seeking divorce on the ground of adultery, without making the adulterer as a party to the proceedings for about four years, he cannot be permitted to get over with the same by way of an amendment and in the considered opinion of this Court, the Family Court had failed to consider all these aspects. In that view of the same, the order - 14 - HC-KAR NC: 2025:KHC:30371 WP No. 25810 of 2022 C/W WP No. 4642 of 2023 WP No. 4711 of 2023 passed in I.A.No.VI in M.C.No.539/2021 dated 04.02.2023 by the Principal II Additional Family Court, Mysuru, is set aside. WP.No.4711/2023 filed by the wife is allowed. IN WP.No.4642/2023 11. WP.No.4642/2023 is filed by the wife aggrieved by the order passed in I.A.No.VII in M.C.No.539/2021 dated 04.02.2023 by the Principal II Additional Family Court, Mysuru, whereby the Family Court had allowed I.A.No.VII filed by the husband. 12. I.A.No.VII is filed by the husband under Order 1 Rule 10 read with Section 151 of CPC seeking permission to implead 1) Sri.Hemanth Kumar.G. and 2) Sri.Shivakumar as respondent Nos.2 & 3. The Family Court had allowed I.A.No.VII holding that since the petition is filed also under Section 13(1) (i) of the Hindu Marriage Act, 1955 and since there is a specific contention by the husband that the proposed respondents are adulterers as they are having illegal relationship with the wife, as per the ratio laid down by this Court in case of Arun Kumar Agarwal Vs. Radha Arun1, they are proper parties and their 1 ILR 2004 Kar 808 - 15 - HC-KAR NC: 2025:KHC:30371 WP No. 25810 of 2022 C/W WP No. 4642 of 2023 WP No. 4711 of 2023 presence before the Court is necessary for effectual and complete adjudication of the divorce petition filed on the ground of adultery. The Family Court observed that the husband has made out grounds to implead the proposed respondent Nos.2 and 3 as parties to the case and accordingly allowed I.A.No.VII. 13. I.A.No.VII is filed on 11.10.2022 and in the affidavit, it is stated that at the time of filing the instant case, the husband was not having the materials to add the persons as necessary respondents. It is stated that the wife had filed M.C.No.59/2016 under Section 9 of the Hindu Marriage Act seeking restitution of conjugal rights. During the cross- examination of the wife on 20.05.2020, when she was confronted with Exs.R2 and R7, the photos of the persons with whom she is having illicit relationship, at one time she has stated that they are her friends and another time she has stated that they are her relatives which shows that she is having an illicit relationship. This Court has already dismissed WP.No.4711/2023, where an amendment is ordered by I.A.No.VI and this Court has set aside the order passed in - 16 - HC-KAR NC: 2025:KHC:30371 WP No. 25810 of 2022 C/W WP No. 4642 of 2023 WP No. 4711 of 2023 I.A.No.VI dated 04.02.2023 and allowed the petition filed by the wife. 14. When the wife has taken a contention that without making the adulterer as a party, the petition cannot be maintained, then the husband has come up with the amendment application which is not permissible. 15. Accordingly, the order passed in I.A.No.VII in M.C.No.539/2021 dated 04.02.2023 by the Principal II Additional Family Court, Mysuru, is set aside and WP.No.4642/2023 filed by the wife is allowed. IN WP.No.25810/2022 16. Aggrieved by the order passed in I.A.No.V in M.C.No.539/2021 dated 15.09.2022 by the II Additional Principal Judge, Family Court, Mysuru, whereby the Court had dismissed the application, the husband is before this Court. 17. I.A.No.V is filed by the husband under Section 151 of CPC seeking an order to conduct DNA test for ascertaining the paternity of the minor son. The Family Court had dismissed I.A.No.V observing that there should be a strong prima facie - 17 - HC-KAR NC: 2025:KHC:30371 WP No. 25810 of 2022 C/W WP No. 4642 of 2023 WP No. 4711 of 2023 case for ordering a DNA test and the husband has not made out such a strong prima facie case. On the other hand, only on the basis of weak suspicion and also on the basis of some photographs and print outs taken from social media which reveals the close friendship of the wife with some persons, the husband had filed the instant application to clarify his doubt regarding the paternity of minor child. The Family Court considering the judgment of the Hon'ble Supreme Court in case of Dipanwitha Roy Vs. Ronobroto Roy2 had observed that though DNA test is the most legitimate and scientifically perfect means to prove the alleged infidelity of the wife and to substantiate the contention regarding adultery, yet in view of the failure on the part of the husband to make out a strong prima facie case, the application that is filed by the husband seeking an order for DNA test cannot be considered and dismissed the application. 18. Learned counsel appearing for the husband submits that when the Court had allowed an application under Order 6 Rule 17 of CPC, wherein he was permitted to amend the 2 (2015) 1 SCC 365 - 18 - HC-KAR NC: 2025:KHC:30371 WP No. 25810 of 2022 C/W WP No. 4642 of 2023 WP No. 4711 of 2023 pleadings wherein he has taken a stand that the paternity of the child itself is a question and when he has impleaded the persons with whom the wife is having illicit relationship, in the light of the law laid down in Dipanwita Roy's case, if the DNA test is conducted, all the true facts will come to light. It is submitted that the Court had dismissed this application stating that the husband has not made out a prima facie case, which is not correct and the order needs to be set aside. 19. Learned counsel appearing for the wife submits that the husband had filed O.S.No.1103/2019 seeking a declaration that he is not the biological father of the child and in that, he had filed an application seeking an order for DNA test and the same is pending consideration. It is submitted that the Court has rightly considered and dismissed the application and there are no grounds made out seeking interference of the order passed by the Family Court. 20. Having heard the learned counsels on either side, perused the entire material on record. The husband is coming up with such a plea for a DNA test in the M.C. case where in the initial proceedings nowhere states that he is not the - 19 - HC-KAR NC: 2025:KHC:30371 WP No. 25810 of 2022 C/W WP No. 4642 of 2023 WP No. 4711 of 2023 biological father of the child and later by way of an amendment he wants to add certain paragraphs and based on some photographs he wants to add certain persons as adulterers and now he also wants to conduct a DNA test of the child. In that regard, he has filed a comprehensive suit and also an application was filed. The Family Court had rightly discussed and rightly held that he could not make out strong prima facie case for ordering a DNA test and this Court finds no reasons to interfere. In the light of the above discussion, this Court is passing the following order: ORDER i. The order passed in I.A.No.VI in M.C.No.539/2021 dated 04.02.2023 by the Principal II Additional Family Court, Mysuru, is set aside. WP.No.4711/2023 filed by the wife is allowed. ii. The order passed in I.A.No.VII in M.C.No.539/2021 dated 04.02.2023 by the Principal II Additional Family Court, Mysuru, is set aside and WP.No.4642/2023 filed by the wife is allowed. - 20 - HC-KAR NC: 2025:KHC:30371 WP No. 25810 of 2022 C/W WP No. 4642 of 2023 WP No. 4711 of 2023 iii. Accordingly, WP.No.25810/2022 filed by the husband is dismissed. iv. All I.As. in these petitions shall stand closed. SD/- (LALITHA KANNEGANTI) JUDGE MEG List No.: 1 Sl No.: 41