The Allahabad High Court has said that the amendment application to convert the marriage restoration case into a divorce case in the family court will be effective from the date of acceptance.
The Division Bench of Justice Surya Prakash Kesarwani and Justice Rajendra Kumar-IV heard the petition filed by Vikalp Chaturvedi.
The first appeal under Section 19 of the Family Courts Act, 1984 has been filed by the plaintiff-appellant praying to set aside the order dated 28.07.2022 i, passed by the Principal Judge, Family Court, Agra whereby the amendment application of the plaintiff-appellant under Order VI Rule 17, CPC for deleting the relief (kha) and treating the petition as a petition under Section 13 of the Hindu Marriage Act, 1955, has been rejected.
The Court noted that, the sole ground taken for rejection of the aforesaid amendment application is that the plaintiff and defendant were married on 09.12.2020 whereas the petition was presented on 31.08.2021 and in the event amendment application is allowed, it shall be deemed to be an amendment from the date of institution of the petition and since a divorce petition under Section 13 cannot be presented within one year in view of specific provisions of Section 14 of the Hindu Marriage Act, 1955, therefore, the amendment application is liable to be rejected.
Aggrieved with the aforesaid impugned order, the plaintiff has filed the appeal.
The Court observed that,
By order dated 12.09.2022 passed by the Court, notice was issued to the defendant-respondent. As per office report dated 13.10.2022, the notice sent to the defendant-respondent through registered post has been served upon the defendant respondent by refusal.
As per office report dated 05.11.2022 and from the record it is also evident that the notice has been personally served by the process server and the report has been received from the District Judge, Mathura that the notice was personally served on 12.10.2022.
Therefore, the service of notice upon the defendant-respondent is deemed sufficient.
“The amendment application of the plaintiff-appellant has been rejected by the order dated 28.07.2022, solely on the ground that if the amendment application is allowed then it shall be deemed to be an amendment from the date of institution of the divorce petition i.e 31.08.2021 whereas the parties were married on 09.12.2020 and therefore allowing the amendment application would mean institution of the divorce petition within one year which shall be barred by the provisions of Section 14 of the Hindu Marriage Act, 1955”, the Court further observed while allowing the application.
“In view of the judgment of the Court in the case of Preeti (supra), the judgment dated 28.07.2022, passed by the Principal Judge, Family Court, Agra cannot be sustained and hereby set aside. Necessary amendment shall be carried out by the plaintiff-appellant in the Matrimonial Petition, within three weeks”, the Court ordered.