8 Most Unusual Ground For Seeking Divorce - India Seen In Recent Times

Time changes, and so do people. Marriage being regarded as the inseparable union of two individuals is history. A spouse, now, may seek a decree of divorce from his/her co-partner, “if things are not going well”. however, the grounds for such a petition for divorce must be reasonable and most prominently, under the purview of law. 

Parties/spouses seeking divorce, sometimes, agree mutually for the same, therefore cutting the time of the proceedings in allotment of a decree of divorce in their favor. Though, the basic grounds for divorce are settled in the Acts such as:

1. Hindu Marriage Act, 1955 (strictly applicable to Hindus)

2. Indian Divorce Act, 1869

3. Muslim Women (Protection of Rights) Act, 1986 (strictly for Muslim women only)

4. Dissolution of Muslim Marriages Act, 1939

5. Special Marriage Act, 1954.

Provisions in the above-mentioned Acts regarding ‘Divorce’ is more or less the same, consisting of the following basic grounds:

1. Cruelty

2. Adultery

3. Desertion

4. Venereal disease

5. Mental disorder

6. Impotency

7. Respondent not heard of being alive for a long period

8. Mutual Consent: Consent of both the spouses for attaining divorce.

8 Most Unusual Ground For Seeking Divorce - India Seen In Recent Times

1. 'Taking Loans In Wife's Name And Failed To Repay Them Amounts To Cruelty'- Uttarakhand High Court, Granted Divorce

The Uttarakhand High Court in Smt. Manpreet Verma Vs Brij Verma (First Appeal No. 133 of 2017) allowed a wife’s plea for divorce on the ground of cruelty, noting that the husband had repeatedly taken loans on the wife’s name knowing well that she had no source of income, and had failed to repay them, putting her in trouble. 

In this case the high court took note that the respondent (husband) is in habit of taking loans and he also took loan in the name of wife i.e. appellant and he also made her guarantor in some loans. He failed to repay his loans and as a result, appellant faced embarrassment. 

The Court observed that

" Taking of loan is neither an offence nor shameful act but failed to repay it may cause embarrassment, as lender comes to recover his loan by any means. It also maligns the reputation of a person is society. Appellant is a house wife. Respondent also took loan in the name of his wife / appellant and also made her guarantor. Appellant has no source of income and she was deserted by her husband. In such circumstance, it was very painful for her to live because she has no source of income but has to repay the loan."

And came to the conclusion that

" all the activities and conducts of the husband respondent are sufficient to establish the cruelty meted out by him to appellant-wife. " And accordingly Decree of divorce is granted.

2. Forcing Husband To Get Separated From His Parents, Amounts To ’Cruelty’ and a ground for divorce - Supreme Court Granted Divorce

The Supreme Court in Narendra Vs K.Meena (CIVIL APPEAL NO.3253 OF 2008) has held that persistent effort of the wife to constrain her husband to be separated from the family constitutes an act of ‘cruelty’ to grant divorce.

A bench of Justice AR Dave and Justice LN Rao also ruled that leveling false allegations against the husband - accusing him of extra-marital affair and repeated threats to commit suicide - is also a ground for divorce. 

The Supreme Court in this case observed that

"The Respondent wife wanted the Appellant to get separated from his family. The evidence shows that the family was virtually maintained from the income of the Appellant husband."

" It is not a common practice or desirable culture for a Hindu son in India to get separated from the parents upon getting married at the instance of the wife, especially when the son is the only earning member in the family."

" A son, brought up and given education by his parents, has a moral and legal obligation to take care and maintain the parents, when they become old and when they have either no income or have a meagre income."

" In normal circumstances, a wife is expected to be with the family of the husband after the marriage. She becomes integral to and forms part of the family of the husband and normally without any justifiable strong reason, she would never insist that her husband should get separated from the family and live only with her. "

"  In the instant case, upon appreciation of the evidence, the trial Court came to the conclusion that merely for monetary considerations, the Respondent wife wanted to get her husband separated from his family. "

"The averment of the Respondent was to the effect that the income of the Appellant was also spent for maintaining his family. The said grievance of the Respondent is absolutely unjustified. A son maintaining his parents is absolutely normal in Indian culture and ethos. "

"There is no other reason for which the Respondent wanted the Appellant to be separated from the family the sole reason was to enjoy the income of the Appellant. "

The Court opined that

"In our opinion, normally, no husband would tolerate this and no son would like to be separated from his old parents and other family members, who are also dependent upon his income."

" The persistent members of the Respondent wife to constrain the Appellant to be separated from the family would be torturous for the husband and in our opinion, the trial Court was right when it came to the conclusion that this constitutes an act of ‘cruelty’. "

The Supreme Court therefore granted divorce. 

3. Calling Wife "Kali Kaluti" Amounts To Cruelty - Punjab and Haryana High Court Granted Divorce. 

Source - This report

The Punjab and Haryana high court in Radha vs Kamal Singh (FAO-M-257 of 2015) has allowed a woman from Mahendergarh in Haryana to divorce her husband on the ground of maltreatment and cruelty. The court accepted her plea that she was compelled to stay away from her husband because he would often taunt her about her skin colour by calling her "Kali Kaluti" in front of other people for not preparing food for him and also had started demanding dowry  as a result of which appellant had to return to her parents' house. The father of the appellant had asked the respondent and his family members to reconcile the matter but they threatened to get the second marriage of the respondent solemnized.

The court reached at the conclusion that

"Wife has been able to establish that she was maltreated and treated shabbily as a result of which she was compelled to stay away from the matrimonial home," the court observed in its order given recently."The evidence produced on record is held to be good enough to arrive at a conclusion that the appellant was treated with mental and physical cruelty."

And accordingly, the marriage of the appellant - applicant wife with respondent is dissolved by a decree of divorce.

4. Wife’s False Allegations Of Infidelity Amounts To Cruelty - Delhi High Court Granted Divorce

The Delhi High Court in R Vs J (MAT.APP.NO. 62/2011) granted divorce to a man holding that his estranged wife’s false allegation of illicit relation between him and his widowed sister-in-law amounted to cruelty.

The petitioner-husband sought the decree for divorce on the ground of cruelty against the respondent on the ground that the respondent-wife was extremely suspicious towards him and soon after the death of the petitioner’s brother in the respondent’s suspicious nature went beyond all reason and tolerance when the respondent started accusing the petitioner of having an affair with the widow of his brother. 

The respondent made such accusations not only in front of their children but also in front of his relatives, neighbours, police, friends and servants which resulted in feeling of deep anguish, disappointment and frustration in the petitioner. 

The continuous course of abuse and humiliating treatment was calculated to torture and render the life of the petitioner miserable, and the continuous unjustifiable conduct and behaviour of the respondent affected the physical and mental health of the petitioner. 

The wife, on the other hand, had vehemently opposed the assertions, and had pressed the same contentions of her husband having an extra-marital affair with his widowed sister-in-law.

Delhi high court opines that 

“This Court agrees with the finding of the learned Trial Court that the respondent/wife has failed to prove any illicit relationship between the petitioner/husband and his widowed sister-in-law. The respondent has leveled false allegations of an illicit relationship between the petitioner and his widowed sister-in-law in the written statement which clearly amounts to cruelty.”

On the basis of this the court reached at the conclusion that

“This Court agrees that the respondent has treated the petitioner with cruelty and the petitioner has neither condoned the acts of cruelty nor cohabited with the respondent. This Court is of the view that the petitioner is entitled to a decree of divorce on the ground of cruelty. And accordingly divorce granted.” 

5. Spoilt Honeymoon, Cruelty To In Laws Ground For Divorce - Delhi High Court Granted Divorce

The Delhi High Court in Anu Seth Vs Sunil Seth(MAT.APP(F.C.)68/2015) granted divorce to the husband on the ground of a spoilt honeymoon and subjecting the husband and his family to "worst kind of mental cruelty" by leveling false accusations.

While allowing dissolution of their 12-year-old wedlock, it noted that the husband and wife returned with "bitter memories and a spoiled honeymoon" in which she had resisted consummation of marriage and tried her best to avoid him in the process. Not only that, she even threatened to commit suicide if he dare touch her body against her mood, willingness and consent.

"In the case of arranged marriages where both the spouses are in the age group of 30 plus, honeymoon period is the best time to know, understand and come close to each other. This case is an exception in the sense that just a day after the marriage the parties left for their honeymoon to Shimla and returned with bitter memories and a spoiled honeymoon." the court observed. 

"The husband was able to establish that during their honeymoon not only consummation of marriage was resisted by her, even thereafter causing embarrassment and humiliation  accusations have been made against him and his entire family. " The bench noted in its judgment 

The Court observed 

"It is a marriage which could not take off right from inception as the worst kind of mental cruelty was faced by the husband during his honeymoon and thereafter. All his efforts to save the marriage by arranging various meetings, visiting the parental home of the wife....could not save this marriage."

The Court opined that

" We are of the considered opinion that the conduct of the wife in the instant case was such that it was not possible for the husband to bear such type of cruelty." And accordingly divorce was granted. 

6.  'No Toilet At Home Amounts To Cruelty' - Family Court In Rajasthan Granted Divorce

Source - This report

A family court in Rajasthan’s Bhilawara district granted a woman divorce while ruling that having no toilet at home is cruelty to women.

The woman, who was married to a family in Atun village of Bhilwara district in 2011 had moved a divorce petition to the family court in 2015 on the grounds that the house of her husband didn’t have any toilet.

The woman had said in her application that when she told her in-laws about the difficulties she had to face while going to defecate in the open. But after repeated assurances, her husband and in laws failed to build a toilet and has been forcing her to defecate in the open. 

Due to the absence of a toilet in her marital home, the woman was living at her parent’s house for the last two years

Commenting on the ‘mental torture’ that women have to deal with while going to defecate in the open in absence of toilets in their homes, justice Rajendra Kumar Sharma termed it as a disgrace for the society.

“ Has it ever pained us that our mothers and sisters have to go to defecate in the open? Women in villages have to wait for dark to venture out in order to relieve and as a result has to bear with physical pain,” justice Sharma said in the judgment. 

The judgment further added that not having toilets in homes is a disgrace in the 21st century.

“ It is an irony that people who spend a lot of money on alcohol, tobacco and mobile phones, don’t have toilets in their homes,” the judgment read.

The court had also asked the family of the petitioner’s in-laws to provide evidence of toilet in their house which they failed to furnish.

The family court finding it amounts to cruelty to the wife granted divorce. 

7. Wife's Demand For Excessive Sex, Amounts To Cruelty - Family Court Granted Divorce

Source - This Report

A man, who sought separation from his wife alleging that she was aggressive and autocratic with an insatiable appetite for sex was granted divorce by a family court in Mumbai.

The husband alleged that she used to force him into having unnatural sex and whenever he tried to resist it, she would abuse him following which he had to succumb to her pressure and persistent demands.

He told the court that he worked in three shifts leaving him very tired, and even then he was compelled to satisfy her 'lust'.

The woman even went to the extent of threatening him that if her demands are not fulfilled, she will go to another man, without caring for his emotions and feelings, the court was told.

Even when he hospitalised for a stomach ache and operated for appendicitis and the doctors advised him to stay away from any physical relationship for a while, the wife kept up with her sexual demands, even as his health deteriorated for lack of rest, the petition submitted.

In the petition, he said that it was intolerable for him to bear any more atrocities and that he also apprehended danger to his life and limb.

He said his wife has made his life horrible with her "cruel behaviour" and her "excessive prank for sex" has made it difficult for him to live together with her under one roof.

Judge Rao allowed the petition and dissolved the man's marriage.

8. Not Allowing Wife To Wear Jeans Amounts To Cruelty - Family Court In Mumbai Granted Divorce

Source -This Report

Objecting to wife wearing kurta and jeans and forcing her to wear saree amounts to cruelty inflicted by husband and can be a ground to seek divorce, a family court in Mumbai has ruled.

The wife pleaded that after marriage in December 2010, her husband did not buy her any clothes and therefore she had purchased Kurta and Jeans from her salary earnings. However, the husband did not allow her to wear them, saying she should wear only sarees.

In her order was passed on June 24, Principal Judge of Family Court, Dr Laxmi Rao, granted divorce to the wife on the ground of cruelty as defined under section 27(1)(d) of Special Marriage Act, 1954.

"In view of the averments made in the petition which have gone unchallenged, it can be said that the petitioner has proved her case, hence, she can be granted divorce as prayed by her. Her plea that she was restrained from wearing jeans and Kurta amounts to cruelty as defined under the Act," the judge held

The wife further alleged that her husband and in-laws had asked her to bring Rs 1 lakh from her house or face dire consequences. They also asked her to quit her job but she had refused to toe their line.

The wife alleged that she was tortured and humiliated as a result of which she suffered mental depression and her life became miserable. She also alleged that her in-laws harassed her on one pretext or the other and warned that if she failed to bring dowry she would face dire consequences.

"I find that she has made out a case for divorce as contemplated under section 27(1)(d) of Special Marriage Act, which contemplates that a divorce can be granted if respondent has treated the petitioner with cruelty," the judge observed. And therefore granted divorce.  

Thus the basic idea behind divorce is to refrain the spouses from unnecessary cohabiting together, when there is no affection left between them. It is better for two individuals to live apart peacefully than to live together violently. Though, the Acts regarding Marriages and Divorces are the result of the culture (mostly religious) prevailing in an area since a long time. The provisions in any of such Act are inscribed by way of ‘reasons’ coupled with a blend of ‘prevailing culture’ and ‘change in mindsets’ of people. That is to say, the amendments to the Acts must be done periodically, so as to upkeep the provisions of the same, so that the reasonability of the statutes remains intact and shall not be held on frivolous grounds.

Read More

Whether Pleadings (Plaint And Written Statement) Can Be Amended (Order 6 Rule 17) After Commencement Of Trial Or Even At An Appeallate Stage? Detailed Discussions With Landmark Judgments

Order 6 Rule 17 of the Code of Civil Procedure deals with amendment of pleadings . Pleadings are the case of the Plaintiff or the Defendant in Plaint And Written statement respectively. An amendment can be by way of altering something, modifying something or deleting something.

Order 6 Rule 17 of the Code of Civil Procedure runs as under,

Amendment of Pleadings :- The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms 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.

Above provisions makes it ample clear that Order 6 Rule 17 commences with the words "the court may at any stage of the proceedings" and thereafter, goes on to confer a power to allow either party to alter or amend his pleadings, where it appears to the court that the amendment is necessary for the purpose of determining the real questions in controversy. 

The proviso, by use of the expression "Provided that no application for amendment shall be allowed after the trial has commenced" appears to place an embargo on the power of a court to allow amendment of pleadings after the trial has commenced. If the proviso were to end with this expression, it could justifiably be argued that pleadings cannot be amended after the commencement of a trial. 

The proviso, however, qualifies the prohibitory expression by the use of the words "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" thereby clarifying that the embargo is not absolute and the court, may if circumstances so permit, allow an amendment after the commencement of the trial. 

Due Diligence :- "Due diligence" means reasonable diligence; it means  such diligence as a prudent man would exercise in the  conduct of his own affairs. It is clear that unless the party  takes prompt steps, mere action cannot be accepted and file a  petition after the commencement of trial.”

Commencement of Trial :- The moment the first witness to be examined in the case entered the witness box, and the Court started recording the evidence, the trial of the suit commenced.  

However, with the introduction of process of filing of affidavits in lieu of chief-examination, the occasion for the Court to apply its mind at the stage of chief-examination would arise only when the documents mentioned in the affidavit are taken on record, after satisfying itself as to admissibility and relevance. 

The safest approach seems to be that the trial of the suit can be said to have commenced when the trial Court makes the chief-examination of the first witness in the suit presented in the form of an affidavit, as part of record, after verification of its content, and on an examination of the documents mentioned therein from the point of view of admissibility, and when such witness is available for cross-examination by the opposite party.

In Salem Advocate Bar Association, Tamil Nadu Vs. Union of India (UOI) AIR 2005 SC 3353.Chief Justice Y.K. Sabharwal speaking for the Bench observed as under :-

" Order 6 Rule 17 of the Code deals with amendment of pleadings. By amendment Act, 46 of 1999, this provision was deleted. It has again been restored by Amendment Act 22 of 2002 but with an added proviso to prevent application for amendment being allowed after the trial has commenced, unless the court comes to the conclusion that inspite of due diligence, the party could not have raised the matter before the commencement of trial."

" The proviso, to some extent, curtails absolute discretion to allow amendment at any stage. Now, if application is filed after commencement of trial, it has to be shown that in spite of due diligence, such amendment could not have been sought earlier. The object is to prevent frivolous applications which are filed to delay the trial. There is no illegality in the provision."

Factors to be taken into consideration while dealing with applications for amendments :-

In Revajeetu Builders & Developers Vs Narayanaswamy & Sons & Others (2009) 10 SCC 84 the Supreme Court on critically analyzing both the English and Indian cases formulates certain basic principles which ought to be taken into consideration while allowing or rejecting the application for amendment. They are 

(1)  Whether the amendment sought is imperative for proper and effective adjudication of the case?

(2)  Whether the application for amendment is bona fide or mala fide?

(3) The amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money;

(4) Refusing amendment would lead to injustice or lead to multiple litigation;

(5) Whether the proposed amendment constitutionally or fundamentally

changes the nature and character of the case? and

(6) As a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application.

Costs:-

The Courts have consistently laid down that for unnecessary delay and inconvenience, the opposite party must be compensated with costs. The imposition of costs is an important judicial exercise particularly when the courts deal with the cases of amendment. The costs cannot and should not be imposed arbitrarily. 

In Revajeetu Builders & Developers Vs Narayanaswamy & Sons & Others (2009) 10 SCC 84 the Supreme Court formulates the following parameters that must be taken into consideration while imposing the costs. These factors are illustrative in nature and not exhaustive. They are 

(i) At what stage the amendment was sought?

(ii) While imposing the costs, it should be taken into consideration whether the amendment has been sought at a pre-trial or post-trial stage;

(iii)The financial benefit derived by one party at the cost of other party should be properly calculated in terms of money and the costs be awarded accordingly.

(iv) The imposition of costs should not be symbolic but realistic;

(v) The delay and inconvenience caused to the opposite side must be clearly evaluated in terms of additional and extra court hearings compelling the opposite party to bear the extra costs.

(vi) In case of appeal to higher courts, the victim of amendment is compelled to bear considerable additional costs.

All these aspects must be carefully taken into consideration while awarding the costs.

Cases where amendment of pleadings (plaint and written statement) was allowed after the commencement of trial :-

The Apex Court in Peethani Suryanarayana V. Repaka Venkata Ramana Kishore AIR 2009 SC 2141 held that Court holds power to allow such amendment, provided the application is bonafide and does not cause injustice to either side and does not affect the rights already accrued to the other side. 

It was on facts in the suit for partition amendment of plaint saying some typographical error is there as to subject matter that requires correction when it causes no prejudice to the so called pendentelite purchasers of suit land by correction of survey Nos.462 and 463 from what plaint originally described of Survey No.165, when that Survey No.165 is reassigned as 463 and the mentioning is to correct the typographical mistake.

The court concludes that the amendment sought is for the purpose of bringing to the record the real question in controversy between the parties and refusal to permit the amendment would create needless complications at the stage of execution in the event of the appellant-plaintiff succeed in the suit.

Recently, in  J.Yadagiri Reddy and others vs. J.Hemalatha and others 2016 (3) ALT 211, the High Court of Judicature at Hyderabad observed that even in cases where an application for amendment is filed after commencement of trial, the amendment should be allowed if the amendment sought does not require any evidence to be led specifically or additionally by either of the parties to decide the rights of the parties as the object of the Court should be not to punish a party for any mistake committed in filling the plaint initially. 

In Sampath Kumar Vs. Ayyakannu AIR 2002 SC 3369, Application for amendment made 11 years after the date of the institution of the suit to convert through amendment a suit for permanent prohibitory injunction into a suit for declaration of title and recovery of possession was allowed holding, the basic structure of the suit is not altered by the proposed amendment and if it is permissible for the plaintiff to file an independent suit, why the same relief which could be prayed for in a new suit cannot be permitted to be incorporated in the pending suit by allowing the amendment that would curtail multiplicity of legal proceedings.

In Mahila Ramkali Devi And Ors vs Nandram Thr. Lrs.& Ors (2015) 13 SCC 132  an  amendment was allowed after 40 years from the date of institution of the suit. The issue involved in the said case was that as per the law prevailing at the time when the suit was instituted, the right of a land-owner (bhumiswami) to transfer his land by way of a will was not recognized by law when the land was transferred by way of will dated 21.01.1961 and under the said background, the plaintiff had prayed for amendment to add the name of minor sons and for alternative relief of succession de- hors the will, which was ultimately allowed by the Hon'ble Apex Court.

In P.Durga Reddy and another v. B.Yadi Reddy, 2016 (2) ALT 63, It was observed that delay itself is not a ground to reject the amendment when it can be allowed on other considerations. Delay can be compensated by costs in such cases.

Amendment of pleadings after the commencement of trial has also been allowed in the following cases :-

Davinder Singh vs Surjit Malhotra 126 (2006) DLT 102

Harish Chander vs Bharti Bhardwaj 118 (2005) DLT 112

State of AP v. Pioneer Builders, 2007 (1) ALT 43 (SC)

Rajesh Kumar Aggarwal & Ors vs K.K. Modi & Ors (2006) 4 SCC 385

Veluri Raja Rajeswari v. Veluri Santhansagar Reddy, 2014 (2) ALT 526. 

Sarabjit Kaur vs Joginder Singh Bamra 2016(1) PLR 719

Sameer Suresh Gupta v. Rahul Kumar Agarwal, (2013) 9 SCC 374

In Sajjan Kumar vs. Ram Kishan [2005 (13) SCC 89] Three-Judge Bench of Supreme Court allowed amendment even at the stage of execution. 

Amendment of pleadings at an appellate stage:-

In Ishwardas V. The State of Madhya Pradesh & Ors., AIR 1979 SC 551 while considering a case of amendment under Order 6 Rule 17 seeking amendment in the written statement at an appellate stage, the Apex Court held as under:- “There is no impediment or bar against an appellate court permitting amendment of pleadings. So as to enable a party to raise a new plea, all that is necessary is that the appellate court should observe the well known principles subject to which amendments of pleadings are usually granted. 

" Naturally, one of the circumstances which will be taken into consideration before an amendment is granted, is the delay in making the application, and if amendment is made at appellate stage, the reason why it was not sought in the trial court." 

" If the necessary material on which the plea arising from the amendment may be decided is already there, the amendment may be more readily granted than otherwise. But, there is no prohibition against an appellate court permitting an amendment at the appellate stage merely because the necessary material is not already before the Court.”

In North Eastern Railway Administration, Gorakhpur V. Bhagwan Das (D) by L.Rs., 2008 AIR SCW 3159, the Court held that amendment of pleadings at an appellate stage is permissible if it does not cause injustice to other party and is necessary to determine the question in contravention.

In Nagappa Vs Gurudayal Singh & Ors., AIR 2003 SC 674, the Supreme Court held that amendment can be allowed even at an appellate stage in a case where the law of limitation is not involved and the facts and circumstances of the particular case so demand, in order to do justice to the parties. 

The case involved therein was under the provisions of Sections 166, 168 and 169 of the Motor Vehicles Act, 1988 and as the Act does not provide for any limitation with respect to filing the claim petition, the amendment at the appellate stage was allowed. A right accrued in favour of a party by lapse of time cannot be permitted to be taken away by amendment. 

Amendment can also be allowed at the appellate stage. Introduction of an entirely new case, displacing admissions by a party is not permissible.  (See: Pirgonda Hongonda Patil V. Kalgonda Shidgonda Patil & Ors., AIR 1957 SC 363; Nanduri Yogananda Laxminarsimhachari & Ors. V. Sri Agasthe Swarswamivaru, AIR 1960 SC 622; M/s Modi Spinning & Weaving Mills Co. Ltd. V. M/s Ladha Ram & Co., AIR 1977 SC 680; Ishwardas V. State of M.P., AIR 1979 SC 551; and Mulk Raj Batra V. District Judge, Dehradun, AIR 1982 SC 24)

In Kankarathanammal V. V.S. Longanatha Mudaliar & Anr., AIR 1965 SC 271; and M/s. Ganesh Trading Company V. Mauji Ram, AIR 1978 SC 484, it was held that amendment Application can be moved at any stage of the proceedings, even at the appellate stage.

However in the following cases amendment of pleadings was not allowed after Commencement of trial

In Vidyabai & Ors. V. Padmalatha & Anr., (2009) 2 SCC 409, the Apex Court held that the provisions of Order 6 Rule 17 are caused in mandatory form. Therefore, the Court may not allow the application for amendment after commencement of the trial. (See also: Ashutosh Chaturvedi V. Prano Devi, (2008) 15 SCC 610; and South Konkan Distilleries & Anr. V. Prabhakar Gajanan Naik & Ors., AIR 2009 SC 1177).

The Apex Court in Chandra Kanta Bansal v. Rajinder Singh Anand, (2005) 6 SCC 344, held that in a suit for injunction restraining the defendant from obstructing the lane in the suit property, defendant seeking amendment of written statement after closure of evidence of both sides to file partition agreement that was not brought in the course of evidence and the same when allowed by amendment to bring in evidence tantamounts to retracting what was pleaded in the written statement and said amendment cannot be allowed for lack of due diligence, in saying that while exercise of discretion care should be taken to see that injustice and prejudice of an irremediable character are not inflicted upon the opposite party under pretence of allowing amendment. It was also held that an amendment which appears clearly to be an afterthought to be disallowed. 

(See also - S.Rajendran vs K.Kanniah & others (2010) 3 MLJ 215 ; J.Samuel & Ors vs Gattu Mhesh & Ors (2012) 2 SCC 300)

Amendment application filed at an unduly delayed stage :-

In Jayanti Roy V. Dass Estate (P) Ltd., AIR 2002 SC 2394, the Supreme Court held that amendment application should be moved at a proper stage. Application filed at an unduly delayed stage should normally be rejected.

If the plaintiff wants to add certain facts, which the plaintiff had not chosen to mention in the original plaint and the same were in his knowledge when the plaint was instituted it can be done. However, the plaintiff cannot be allowed to make fresh allegation of facts by way of amendment at a belated stage. amendment of pleadings at a belated stage is not permissible as it could not be permissible by the provisions contained in the proviso to Order 6  Rule 17.

(See: Chaturvedi V. Prano Devi & Ors., 2008 AIR SCW 3352, Gopal Krishanamurthi V. Shreedhara Rao, AIR 1950 Mad. 32; and Gauri Shankar V. M/s Hindustan Trust (Pvt) Ltd., AIR 1972 SC 2091)

However in Pankaja & Anr. V. Yellappa (Dead) by L.Rs. & Ors., AIR 2004 SC 4102, the Supreme Court held that there is no absolute rule that amendment should not be allowed at a belated stage in a particular case. Even if amendment sought is barred by limitation, if the Court after examining the facts and circumstances of the case comes to the conclusion that amendment serves the ultimate cause of justice and avoids further litigation, the amendment should be allowed. (Also see:- Rajesh Kumar Aggarwal & Ors. V. K.K. Modi & Ors. , AIR 2006 SC 1647).

Thus amendment of pleadings from the above is basically for the purpose of bringing about final adjudication in a lis and to avoid multiplicity of proceedings and shorten litigation and where it is necessary to determine the real controversy. It is in the interest of justice that a suit shall be decided on all points of controversy and accordingly, it is needed that the party shall be allowed to alter or amend their pleadings during the pendency of the suit. 

According to Order VI Rule 17 of the Code of Civil Procedure, 1908, the Court may allow the amendment at any stage of the proceedings and for such purpose it may impose conditions i.e. in the form of cost or any other condition. 

The Court has been given discretion in this regard and the mandatory guidelines upon the Court as well as upon the party seeking amendment is that they shall make only such amendments which are necessary for determination of real controversy between the parties to the suit. 

At the same time, the Proviso to Order VI Rule 17 puts a mandate upon the Court not to allow such amendment after the trail has begun (i.e. if issues have been settled), if its finds that the party could have raised the pleadings by due diligence at an earlier point of time. 

However, the Proviso need not be given a very rigid effect in all cases as the same is subject to the discretion of the Court, for procedural law does not come in the way to determine real matters in controversy so to permit for rendering substantial justice between parties and to avoid multiplicity of proceedings and life to litigation and of anticipatory future complications. 

The main object of the legislation is to enable the Court to allow amendment at any stage and thereby delay itself is not a ground to refuse, but for not to permit where there is by such amendment changes cause of action or tantamounts to withdrawal clear admissions unexplained or amendment plea to introduce is mutually destructive or where claim is time barred and allowing it causes grave prejudice and injustice to rights accrued to other side than by refusal.

Read More

15 Stages Of Criminal Trial In A Warrant Case Instituted On Private Complaint

What is criminal complaint?

Section 2 (d) of the Code of Criminal Procedure defines the term ‘complaint’ as any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report.

Explanation: - A report made by a police officer in a case which discloses, after investigation, the commission of a non-cognizable offence shall be deemed to be a complaint; and the police officer by whom such report is made shall be deemed to be the complainant. 

What is a warrant case?

According to Section 2(x) of Code of Criminal Procedure, 1973 a warrant case is one which relates to offenses punishable with death, imprisonment for life or imprisonment for a term exceeding two years.

Stages of Criminal Trial in a Warrant Case instituted on private complaint

Section 244 to 250 of Code of Criminal Procedure are pertaining to cases instituted otherwise then on police report (private complaint). There are 15 stages of Criminal Trial in a Warrant Case instituted on private complaint. They are 

1. Presentation of complaint.

2. Verification of complaint.

3. Issuance of process.

4. Appearance of accused before the court.

5. Releasing accused on bail.

6.  Evidence of complainant before charge.

7. Cross examination of prosecution witnesses.

8. Discharge of accused

9. Framing of Charge. 

10. Conviction on plea of guilty.

11. Cross-examination of prosecution witnesses, if accused pleads not guilty. 

12. Statement of accused U/s.313 of Cr.P.C. 

13. Evidence of defence.

14. Argument.

15. judgement.

Now each stage can be discussed as under 

1. Presentation of complaint

The first stage of complaint case is presentation of complaint before a

magistrate.

The complaint has to be filed with the magistrate who has the jurisdiction to try the offence complained of. However in cases where the complaint is accidentally filed with the magistrate not having the jurisdiction, the magistrate is duty bound to return the complaint to be presented to the appropriate magistrate by stating the necessary details thereof.

The complaint may be made orally or in writing. However it is always better to furnish it in writing. 

In Francis Savio vs. State of Kerala 1998 Cr LJ 4735 it was observed that 

" In drafting a criminal complaint, there is no specific provision either in the Criminal Procedure Code or in the rules framed there under as to how a criminal complaint has to be drafted. What we should see in the criminal complaint is whether the entire substance of the complaint prima facie, makes out an offence said to have been committed, or whether there is a ground to presume on the entire reading of the substance of the complaint that the offence is likely to have been committed. " 

2. Verification of complaint

Every day experience of the Courts shows that many complaints are ill founded, and it is necessary therefore that they should at the very start be carefully considered and those which are not on their face convincing should be subjected to further scrutiny so that only in substantial cases should the Court summon the accused person. 

Therefore, Sections 200 to 203, Cr PC have been enacted for weeding out false, frivolous and vexatious complaints aimed at harassing the accused person

On the filing of the complaint, the court will examine upon oath the complainant and its witnesses on the same day or any other day to decide whether any offense is made against the accused person or not.(Section 200)

After examination of the complainant, the Magistrate may either inquiry into the matter himself or direct an investigation to be made by a police officer for the purpose of deciding whether or not there is sufficient ground for proceedings.(Section 202)

If, after considering the statements on oath (if any) of the complainant and of the witnesses and the result of the inquiry or investigation (if any) under section 202, the Magistrate is of opinion that there is no sufficient ground for proceeding, he shall dismiss the complaint, and in every such case he shall briefly record his reasons for so doing. (Section 203) 

In M/s. Nova Electricals, Jalgaon vs. State of Maharashtra and Anr. 2007 Cr LJ 535

The Bombay High Court has observed that the verification of the complainant as required under Section 200 of the Cr PC is not a mere formality and the Magistrate has to ascertain thereby whether the complaint is genuine or frivolous. It is further held that for omission by the Court to record verification, the complainant cannot be penalized for it and on that ground the complaint cannot be quashed. Omission by Court to record verification and/or examining the complainant on oath, at the most can be said to be an irregularity and the same can be cured subsequently.

3. Issuance of process

After examination of the complaint and the inquiry report, if the court thinks that the prosecution has a genuine case and there are sufficient material and evidence with the prosecution to charge the accused then the Magistrate may issue a warrant or a summon depending on the facts and circumstances. However in a warrant- case, he may issue a warrant, or, if he thinks fit, a summons, for causing the accused to be brought or to appear at a certain time before such Magistrate or (if he has no jurisdiction himself) some other Magistrate having jurisdiction. (section 204)

Once process is issued against accused the court shall send summons / warrant along with copy of complaint to accused. The date on which accused has to appear before court must be mentioned in the summons

Generally in complaint cases summons has been issued to the accused to appear before the court on the date mentioned in the complaint. If the accused fails to appear before the court on such date, then warrant has been issued. 

4. Appearance of accused before the court

On the fixed next date of hearing, the accused is obliged to appear in person. However, whenever the Magistrate issues a summons, he may, if he sees reason so to do, dispense with the personal attendance of the accused and permit him to appear by his pleader / advocate. But the Magistrate inquiring into or trying the case may, in his discretion, at any stage of the proceedings, direct the personal attendance of the accused, and, if necessary, enforce such attendance. 

5. Releasing accused on bail

 As soon as accused appears before magistrate, a bail is asked from him for securing his attendance during trial. Once bail is furnished by the accused then the case is fixed for recording evidence of prosecution witnesses before charge. 

6. Evidence of complainant before charge

In a warrant triable case instituted otherwise than on a police report, when the accused appears or is brought before the Magistrate, the Magistrate would proceed to hear the prosecution and would proceed to take all such evidence as may be produced in support of the prosecution. The Magistrate may, on the application of the prosecution, issue a summons to any of its witnesses directing him to attend or to produce any document or other thing.

However, before leading of evidence by the Prosecution, the accused may prefer a discharge Application u/s 245(2) before the Court, primarily on the grounds that 

(a) there are no material or evidences against the accused to proceed against him; or 

(b) that acts and omissions attributed towards the accused does not constitute any offence. 

7. Cross examination of prosecution witnesses

If defence wants to cross examine prosecution witnesses then it can cross examine them.

In Harinarayan G. Bajaj vs. State of Maharashtra, (2010) 11 SCC 520, the Supreme Court held that the right of an accused to cross-examine witnesses produced by the prosecution before framing of a charge against him was a valuable right. It was only through cross-examination that the accused could show to the Court that there was no need for a trial against him and that the denial of the right of cross-examination under Section 244, CrPC would amount to denial of an opportunity to the accused to show to the Magistrate that the allegations made against him were groundless and that there was no reason for framing a charge against him.

8. Discharge of accused

Upon taking all the evidence of the Prosecution, if the Magistrate considers that case against the accused is such that even if it is unrebutted, would not warrant his conviction, the Magistrate would discharge the accused and would record his reasons in support thereof. 

However a Magistrate may discharge the accused at any previous stage of the case if he considers the charge to be groundless.  He must record the reasons for so doing. (Section 245)

9. Framing of Charge

If accused is not discharged by the magistrate under section 245 of Cr.P.C. and after considering evidence which has been recorded previously, ttie magistrate is of the opinion that there is ground for presuming that the accused has committed an offence triable under chapter 16 of Cr.P.C, which such magistrate is competent to try and which in his opinion, could be adequately punished by him, he shall frame in writing a charge against the accused.(Section 246(1))

The charge shall then be read over and explained to the accused in vernacular and shall be asked whether he pleads guilty or has any defence to make. (Section 246(2)

In State of Kerala vs. Sebastain, 1983 Cr LJ 416, the Kerala High Court held that once the charge has been framed, the Magistrate is bound to proceed further with the trial and then he cannot discharge the accused. Framing of charge against the accused is an order affecting the interest of the accused and the Magistrate cannot review his own order. Subordinate Courts have no inherent powers and cannot reverse their own orders. After framing the charge the Magistrate cannot dismiss the complaint nor can discharge the accused.

10. Conviction on plea of guilty

If the accused pleads guilty, the Magistrate shall record the plea, and may, in his discretion, convict him thereon.(Section 246(3) 

11. Cross-examination of prosecution witnesses, if accused pleads not guilty

If the accused refuses to plead, or does not plead or claims to be tried or if the accused is not convicted under sub-section 246(3), he shall be required to state, at the commencement of the next hearing of the case, or, if the Magistrate for reasons to be recorded in writing so thinks fit, forthwith, whether the accused wishes to cross-examine any, and if so, which, of the witnesses for the prosecution whose evidence has been taken. (Section 246(4)

If the accused says he does so wish, the witnesses named by him shall be recalled and, after cross-examination and re-examination (if any), they shall be discharged. (Section 246(5)

The evidence of any remaining witnesses for the prosecution shall next be taken and after cross-examination and re-examination (if any), they shall also be discharged.(Section 246(6)

12. Statement of accused U/s.313 of Cr.P.C. 

After taking evidence of all prosecution witnesses, by reason of mandate of Section 313 of CrPC, 1973, the Judge would bring to the notice of the accused, all the evidence which has come against him and would call upon the accused as what he has to say on those evidences. Such recording of statement of accused u/s 313 is not on oath. Such statement of accused can be used against him in the trial. 

13. Evidence of defence (Section 247)

The accused would then be called upon to enter upon his defense and produce his evidence. 

If the accused puts in any written statement, the Magistrate shall file it with the record.

If the accused, after he had entered upon his defense, applies to the Magistrate to issue any process for compelling the attendance of any witness for the purpose of examination or cross-examination, or the production of any document or other thing, the Magistrate shall issue such process unless he considers that such application should be refused on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice and such ground shall be recorded by him in writing.

14. Argument

The Prosecution and the defence counsel then present their argument. 

Section 314 provides that  " Any party to a proceeding may, as soon as may be, after the close of his evidence, address concise oral arguments, and may, before he concludes the oral arguments, if any, submit a memorandum to the Court setting forth concisely and under distinct headings, the arguments in support of his case and every such memorandum shall form part of the record."

A  copy of every such memorandum shall be simultaneously furnished to the opposite party.

                                                                                                 
15. Judgment

The final decision of the court with reasons given in support of the acquittal or conviction of the accused is known as judgment. 

If, in any case under Chapter 19 in which a charge has been framed, the Magistrate finds the accused not guilty, he shall record an order of acquittal. 

Where, in any case under this Chapter, the Magistrate finds the accused guilty, but does not proceed in accordance with the provisions of Section 325 (Procedure when Magistrate cannot pass sentence sufficiently severe) or Section 360 (Order to release on probation of good conduct or after admonition), he shall, after hearing the accused on the question of sentence, pass sentence upon him according to law. (Section 248)

Judgement shall be pronounced in accordance with chapter 28 of Cr.P.C. (dealing with judgment)

Read More