TaxTMI 
TaxTMI 
2015 (5) TMI 1118
X X X X Extracts X X X X
X X X X Extracts X X X X
.... parties have contracted a marriage under the Special Marriage Act and yet give a direction suo motu to the respondent to amend the petition. 3. Both Mr. Chandhiok, the learned senior counsel for the appellant and Mr. Jai Bansal, the learned counsel for the respondent have vehemently canvassed for their point of view with number of judgments but before dealing with their respective submissions, it may be pertinent here to given a brief background of the case. 4. The respondent/petitioner filed a petition against the appellant/wife for grant of divorce under Section 13 (i) (a) and (i) (b) of the Hindu Marriage Act on the grounds of cruelty and desertion. It was not disputed that the parties are Hindu by religion and got married on 29.10.1986 as per Hindu rites and ceremonies. The marriage though a love marriage could not continue for very long and the relationship soured as a consequence of which the marriage got dissolved by a decree of divorce on 2.6.1988. 5. After the decree of divorce having been passed, the parties were drawn against each other once again and they decided to get re-married for second time. This time on 3.5.1990, the marriage was solemnized before a Marriage ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....h did not have the jurisdiction could not entertain the same. These judgments were distinguished by the learned ADJ by observing that they related to territorial jurisdiction and not to subject-matter jurisdiction which admittedly the ADJ had in the instant case. The learned ADJ in support of his reasoning relied upon two judgments cited by the learned counsel for the respondent/petitioner to contend that it had the jurisdiction because the ground of cruelty was a ground for which a provision existed as a ground for divorce under both the enactments. The case relied upon are titled Anupam Das v.Smt. Mampi Das; AIR 2008 Gau (3) 2007 and Prabir Chandra Chatterjee vs. Kaveri Guha Chatterjee; AIR 1987 Calcutta 191. 10. I have heard both Mr. Chandhiok, the learned senior counsel for the appellant as well as Mr. Jai Bansal, the learned counsel for the respondent. 11. Mr. Chandhiok, the learned senior counsel for the appellant has made the following submissions :- 12. The first contention is that if the marriage is solemnized under the Special Marriage Act, then one cannot invoke the jurisdiction of the court exercising the powers under Hindu Marriage Act as in that case, the court wil....
X X X X Extracts X X X X
X X X X Extracts X X X X
....hether a divorce petition under Section 13 of HMA filed by one of the parties both being Hindu but married under Special Marriage Act, be dismissed merely on the premise that the same ought to have been filed under Section 27 of Special Marriage Act. 17. In the instant case, the learned Trial Judge had rejected the application of the appellant/wife for dismissal of the divorce petition holding that such a petition for divorce was maintainable and the only mistake which had taken place was instead of mentioning the relevant provisions for grant of divorce under the Special Marriage Act, the provisions of the Hindu Marriage Act were mentioned. 18. It has been contended by Mr. Chandhiok that no doubt under the Family Courts Act, it is the same Family Judge who deals with the personal laws and the matrimonial laws of all the religions, but before the constitution of the family courts as this is an old case, the jurisdiction is vested with the District Judge and it is not necessary that the same District Judge may be assigned the task. Therefore, there will be lack of jurisdiction to entertain the petition by the District Judge which passed the impugned order. 19. What is involved in....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... in view of the aforesaid does not persuade me to accept his argument. 25. The second submission is that wrong mentioning of provision is different from invoking jurisdiction under a different statute. Reliance in this regard is placed on Jeet Mohinder Singh vs. Harminder Singh; (2004) 6 SCC 256. 26. In Jeet Mohinder Singh's case (supra), the Supreme Court has dealt with the purpose of mentioning the correct provision for filing the application and it was held as under: 6. Though the nomenclature of an application is really not material and the substance is to be seen, yet it cannot be said that a party shall be permitted to indicate any provision and thereafter contend that the nomenclature should be ignored. Duty is cast on the parties to properly frame their applications and indicate the provisions of law applicable for making the application. Nomenclature may not be normally material. But there is a purpose in indicating the nomenclature in a clear and precise manner. Though it is the substance and not the form which is material but as indicated above, that cannot be a reason to quote an inappropriate provision of law and then say "Don't look at the nomenclature". T....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... be a hyper technical approach rather than doing substantive justice. 29. The learned counsel for the respondent relying on N.Mani v.Sangeetha Theatre; (2004) 12 SCC 278 has submitted that in the instant case there was only a technical problem, which was already removed by the learned ADJ court by directing the respondent to file amended petition of divorce under Special Marriage Act. 30. No Doubt, the pleadings are of utmost importance and so are the provisions of law under which they are filed. But courts are by and large guided by the substantive justice rather than ousting a party on hyper technicalities. This is more so in matrimonial cases which are not like commercial disputes. In matrimonial cases both the a parties are disturbed because of their matrimonial discord, therefore, they need to be dealt with humane approach with a view to find a solution to their vexed problem through adjudication if it is not possible through mediation and conciliation. Therefore, in my view, this judgment does not help the appellant. 31. The third submission is non-raising of 'No objection as to inherent lack of jurisdiction' in the written statement will not create any bar against....
X X X X Extracts X X X X
X X X X Extracts X X X X
..... 37. At the outset, it stated so far as the question of concealment of facts, as alleged, is concerned, that is a question of merit of the matter and need not and cannot be gone into when the dismissal of the petition is sought on account of certain procedural irregularity. 38. Mr. Jai Bansal, the learned counsel for the respondent is concerned, has primarily placed reliance on the two judgments of the Bombay High Court and Guwahati High Court. These are Anandrao, s/o Marotrao Kharabe vs. Madhuri posing herself to be w/o Anandrao Kharabe & Anr.; 2009 (111) Bombay LR 832 and Anupam Das vs. Smt. Mampi Das; AIR 2008 Gau 3. 39. So far as Anupam Das's case (supra) is concerned, the same is distinguishable on the premise that this was a case which had come up before the High Court of Gauhati when a petition under Article 227 of the Constitution of India was filed challenging an interlocutory order passed under Section 25 of the Hindu Marriage Act, 1955 and Section 20 (3) of the Hindu Adoptions and Maintenance Act, 1956 by the learned District Judge, Shillong directing the revision-petitioner to pay a sum of Rs. 1,000/- per month to the respondent and another sum of Rs. 500/- per ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....0. In Anandrao's case (supra) is also distinguishable from the instant case as the issue involved was whether it was open to the parties whose marriage is solemnized under the Special Marriage Act by mutual consent to dissolve their marriage can be legally dissolved as per customs which are saved by Hindu Marriage Act even though marriage is solemnized under Special Marriage Act. While referring to Section 4 read with Section 29 (2) and 29 (4), the Bombay High Court negatived both these contentions that a marriage which is solemnized under Special Marriage Act can neither be dissolved under the Special Marriage Act as there is no ground for mutual consent divorce under the Special Marriage Act and secondly even though the parties are Hindus even then it could not be assumed that the marriage according to their customary rights could be dissolved by mutual consent because Section 29(4) even though expressly laid down that nothing contained in Hindu Marriage Act shall be deemed to affect the provisions under the Special Marriage Act, 1954 has to be read in context of Section 4 of the Hindu Marriage Act which gives an overriding affect over the customary rights which were in exist....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties: 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. 44. A perusal of the aforesaid provision would clearly show that Order 6 Rule 17 CPC envisages amendment of a plaint or a written statement on an application and not on direction of the court meaning thereby that only when an application is filed by either the plaintiff or the defendant for amendment of its pleading, the court will be called upon to decide the said application at that point of time. The court has no power of its own unlike under Section 151 CPC or under Order 14 Rule 5 CPC or Order 1 Rule 10 CPC to pass an order which may be warranted under law in those contingencies. As has already been discussed in the previous paras, the learned Trial Judge, in my considered opinion, has exceeded its jurisdiction of also giving a direction to the respondent to amend the plaint and ....