1 2026:CGHC:17304 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WP227 No. 439 of 2026 Shomi Patel W/o Bhishm Kumar Patel Aged About 31 Years R/o Village- Jagatpur, Kumhar Para, Dhimarapur Road, Raigarh, Tehsil And District- Raigarh (C.G.) ... Petitioner(s) versus Bhishm Kumar Patel S/o Shri Dirpal Singh Patel Aged About 33 Years Profession- Naib Tehsildar, R/o Village- Sangitarai, Raigarh, Tehsil And District- Raigarh (C.G.) ... Respondent(s) For Petitioner(s) : Mr. Hari Agrawal, Advocate For Respondent(s) : Hon’ble Shri Justice Ravindra Kumar Agrawal Order on Board 15/04/2026 1. Heard. 2. This is a writ petition under Article 227 of the Constitution of India filed by the petitioner against an order dated 09.03.2026 (wrongly 2 mentioned as 09.03.2025 in the impugned order) passed by learned Family Court, Raigarh in Civil Suit No. 172-A/2024 whereby the application filed by the petitioner under Order 14 Rule 5 of CPC has been rejected. 3. Learned counsel for the petitioner would submit that the petitioner was the non-applicant before the learned Family Court, Raigarh. The respondent who was the applicant before the learned Family Court, Raigarh, prosecuting an application under Section 13(1) of Hindu Marriage Act, 1955. The notice have been served upon the petitioner and she filed her reply in the case. Thereafter two issues have been framed by the learned Family Court on 26.11.2024 with respect to the Cruelty and desertion. Thereafter vide order dated 16.01.2026 the application filed by the petitioner under Order 6 Rule 17 of CPC was allowed and he was permitted to carry out necessary amendments in her written statements. The said amendment was with respect to the earlier proceedings initiated by the respondent/husband which was withdrawn without any liberty and on the same cause of action the present application has been filed which is not maintainable. Thereafter, the petitioner has filed and application under Order 14 Rule 5 OF CPC before the learned Family Court and prayed for framing of additional issue with respect to the maintainability of the suit which has been rejected by the learned Family court. He would further submit that the earlier application was withdrawn by the respondent without any liberty and therefore on the same cause of 3 action the subsequent application is not maintainable. It is the vital and necessary issue to that respect and the same should have been framed by the learned Family court so as to decide the dispute between the parties finally. He also submit that the learned Family court has also observed in its order that earlier also the same application under Order 14 Rule 5 of the CPC has been dismissed whereas earlier application was with respect to the objection of two different enactments, i.e., either Hindu Marriage Act, 1955 would be applicable or provisions of Special Marriage Act, 1954 would be applicable as the parties have went for registration of the marriage under the Special Marriage Act, 1954. He would further submit that the proposed issue regarding maintainability of the present application filed by the respondent is necessary to be adjudicated in view of the subsequent pleading incorporated in the written statement yet the same has been rejected by the learned Family Court, therefore, the impugned order may be set-aside and the learned Family Court may be directed to frame the additional issue. 4. I have heard learned counsel for the petitioner and perused the record and documents annexed with the petition. 5. It transpires from the order dated 16.01.2026 passed by learned Family Court that the application for amendment filed by the respondent under Order 6 Rule 17 of CPC was allowed and she was permitted to carry out necessary amendment in written statement. From perusal of the application of the amendment filed 4 by the petitioner before the learned Family Court it transpires that the earlier application filed by the respondent before the Family Court, Raigarh was withdrawn by the respondent, which was allowed to be incorporated in the written statement. The petitioner has also averred that since the present application has been filed by the respondent on the basis of the initial cause of action for which the respondent has already prosecuted his application, which has been withdrawn without any liberty, the respondent cannot prosecute the subsequent application before the learned Family Court on the same cause of action. The said averment was permitted to be incorporated in the written statement filed by the petitioner. 6. From perusal of the application filed by the petitioner under Order 14 Rule 5 of CPC it also reveals that she proposed the issue with respect to maintainability of the present application filed by the respondent before the learned Family Court in which she proposed the issue that “ क्या नया वाद प्रस्तुत करने की अनुमतित प्राप्त किकये किना पूववत व्यवहार वाद कमांक 13/2024 का प्रत्याहरण करने के कारण वादी का वतमान वाद प्रचलन योग्य नहीं है ?” 7. When the petitioner was permitted to carry out the necessary amendment in her written statement with respect to maintainability of the suit as well as earlier application filed by the respondent, the maintainability of the suit would be a relevant issue for its consideration. It may affect the ultimate outcome of the 5 proceedings and therefore the learned Family Court ought to have frame the said issue but he rejected the application. 8. Although the provisions of Order 14 Rule 5 of CPC empowers the court to frame or alter any issue before passing of the decree at any time, but the proposed issue with respect to maintainability of the suit goes to the root of the matter. Therefore the issue proposed by the petitioner would be relevant and should have been framed by the learned Family Court. Therefore, this Court is of the opinion that the learned Family Court shall be directed to frame the additional issue with respect to the proposed issue no. 3 by the petitioner in her application filed under Order 14 Rule 5 of CPC filed on 27.02.2026 and to decide the case in accordance with law after providing opportunity of hearing to the parties. Ordered accordingly. 9. With the aforesaid observation, the present petition is partly- allowed. Sd/- (Ravindra Kumar Agrawal) JUDGE Madhurima