Plea seeking restitution of conjugal rights cannot be amended to convert it into divorce petition: Bombay High Court

A family court order allowing an application for restitution of conjugal rights to be amended into a plea for dissolution of marriage was set aside by the Bombay High Court [Ariz Kohli vs Tehzeeb Kohli]..Justice Bharati Dangre held that prevention of multiplicity of litigation cannot be a ground to allow amendment applications to entirely change the final relief and also said that courts should discourage dishonest or worthless amendments."Merely because it would result in multiplicity of litigation, can be no ground to grant amendment, praying a diagonally opposite relief, in the main proceedings, as the Court must be cautious while allowing the application for amendment and shall discourage worthless and/or dishonest amendments," the 21-page order stated..The wife had filed an application for restitution of conjugal rights in 2018. Two years later, she sought to amend the application by replacing the prayer for restitution with the prayer for divorce. The application seeking amendment stated that the marriage could not be saved and her husband's conduct revealed that pursuing restitution was futile.The family court at Bandra allowed the amendment which was challenged before the High Court by the husband in the present appeal..Advocate Malcolm Siganporia for the husband stated that for all purposes, the provisions of the Civil Procedure Code are applicable to the family court and, hence, the parameters which are usually applicable to civil proceedings would be equally applicable to the proceedings before the Family Court.Senior Advocate Rafique Dada, appearing for the wife, argued that every court should endeavour to avoid multiplicity of litigations. Delicate and sensitive matrimonial matters must be dealt with a liberal hand with precedence given to restoration of normal marital ties and if not, dissolution in a dignified way should be permitted, Dada submitted..Justice Dangre noted that the relief sought by the wife by way of an amendment was alien and conflicting with the original reliefs sought in the application."The basic test to govern the courts discretion should be whether the amendment is necessary for determination of the real question in controversy. The relief sought by way of amendment is exclusive and completely extrinsic and alien to the one which was sought, in the backdrop of the pleading set out in the petition filed by the wife. Further prayer clauses which are sought to be inserted are the prayers which are completely irreconcilable to the original petition and reliefs sought therein," the Court stated.Holding that the family court miserably failed to consider the true conspectus of the provision permitting grant of amendment, the High Court allowed the writ petition and set aside the family court order.[Read Judgment]