Shona (Sonali) Taneja @ Sonali Yograj Nath vs Sachin Taneja
- Court
- Delhi High Court
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment reserved on: 04.08.2026
Judgment pronounced on: 27.10.2026
# CNR No. DLHC010140792021
+ CM(M) 268/2021
SHONA (SONALI) TANEJA @ SONALI YOGRAJ NATH
.....Petitioner
Through: Ms. Geeta Luthra, Sr. Adv. with
Mr. Pranjal Pandey, Mr. Anuj
Singh, Mr. Prasann Prashar,
Ms. Janvi Desai and Ms. Prachi
Sharma, Advs.
versus
SACHIN TANEJA .....Respondent
Through: Mr. Prosenjeet Banerjee, Sr.
Adv. with Ms. Shreya Singhal,
Ms. Anshika Sharma, Ms.
Mhasilenuo Keditsu & Ms.
Kushagra, Advs. alongwith
Respondent in person.
CORAM:
HON'BLE MR. JUSTICE HARISH VAIDYANATHAN
SHANKAR
J U D G M E N T
HARISH VAIDYANATHAN SHANKAR, J.
1. The present Petition has been preferred under Article 227 of the
1 2
Constitution of India , assailing the Order dated 19.10.2020 passed
by the learned Principal Judge, South-East District, Family
1
Constitution
2
Impugned Order
Signature Not Verified
Digitally Signed
By:HARVINDER KAUR
BHATIA
Signing Date:29.10.2026
17:00:14
CM(M) 268/2021 Page 1 of 42
3
Courts, Saket, New Delhi , in H.M.A. No. 794/2013 titled „Sachin
Taneja v. Shona (Sonali) Taneja‟ , whereby the Application filed in
4
December 2019 by the Respondent herein under Order VI Rule 17 of
5
the Code of Civil Procedure, 1908 , seeking amendment of his
pleadings, came to be allowed.
2. By the Impugned Order, the learned Family Court has allowed
the Application filed by the Respondent seeking amendment of his
pleadings in the proceedings instituted by him under Section 25 read
6
with Section 26 of the Hindu Marriage Act, 1955 , seeking
modification of the Judgment and Order dated 29.11.2011 and
11.05.2012 passed in the proceedings for dissolution of marriage
between the parties by mutual consent.
3. The present Petition arises from the proceedings pending before
the learned Family Court under Section 25 read with Section 26 of the
HMA, wherein the Respondent seeks modification of the terms
contained in the Judgment and Order dated 29.11.2011 and
11.05.2012, inter alia , with respect to the financial obligations
towards the children and the arrangements concerning their custody
and visitation. In the said proceedings, issues were framed by the
learned Family Court on 27.03.2014, and the matter thereafter
proceeded to trial. The Respondent's evidence was tendered on
01.11.2018 and his cross-examination commenced on 04.12.2018. It
was during the pendency of the said proceedings, and after
commencement of trial, that the Respondent filed the Application
under Order VI Rule 17 of the CPC seeking amendment of his
3
learned Family Court
4
Amendment Application
5
CPC
6
HMA
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BHATIA
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pleadings, which came to be allowed by the Impugned Order dated
19.10.2020.
4. At the outset, it is made clear that the principal question which
arises for consideration in the present Petition is whether the learned
Family Court was justified in allowing the Respondent's Application
for amendment after commencement of trial, having regard to the
requirements of Order VI Rule 17 of the CPC, the nature of the
proceedings under Sections 25 and 26 of the HMA and, in particular,
the power of the Family Court under Section 10(3) of the Family
Courts Act, 1984 to adopt an appropriate procedure for arriving at the
truth of the facts in issue.
5. For the sake of clarity, uniformity and consistency, the parties
in the present petition shall hereinafter be referred to in accordance
with their ranks before this Court.
BRIEF FACTS:
6. Shorn of unnecessary details, the brief facts necessary for the
adjudication of the present Petition are as follows:
a) The marriage between the parties was solemnized on
03.03.1999 as per Hindu rites and ceremonies at New Delhi. Two
children were born from the wedlock, namely, Armaan and Amaaya.
The parties started residing separately in or around October 2010 and,
having been unable to reconcile their differences, instituted
proceedings under Sections 13B(1) and 13B(2) of the HMA seeking
dissolution of their marriage by mutual consent. The first motion was
allowed on 29.11.2011, while the second motion was allowed vide
Judgment dated 11.05.2012, pursuant whereto the marriage between
the parties stood dissolved by a decree of divorce by mutual consent.
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BHATIA
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b) The aforesaid proceedings for dissolution of marriage were
accompanied by a settlement between the parties governing, inter alia ,
the expenses and education of the children, household expenses, their
supervision, custody and visitation. Under the arrangement so
recorded, the Respondent herein had undertaken various financial
obligations towards the children and the household, while the parties
also agreed upon terms governing the residence of the children and
their interaction and visitation with the parties.
c) Thereafter, the Respondent instituted proceedings before the
learned Family Court by way of an Application dated 30.07.2013
under Section 25 read with Section 26 of the HMA, seeking
variation/modification of the terms contained in the aforesaid
Judgment and Order dated 29.11.2011 and 11.05.2012. The said
proceedings, instituted in July 2013, sought modification of the
arrangements relating to maintenance, custody and visitation, and was
founded, inter alia , upon the Respondent's case concerning the
circumstances in which the mutual-consent settlement had been
arrived at and the subsequent conduct of the parties.
d) On the basis of the pleadings of the parties, the learned Family
Court framed issues on 27.03.2014. The principal issue concerned
whether the Judgment and Order dated 29.11.2011 and 11.05.2012
were liable to be modified in terms of the reliefs sought in the
aforesaid Application. The learned Family Court also directed the
parties to lead evidence.
e) In pursuance of the aforesaid directions, the Respondent filed
his Evidence by way of Affidavit in January 2017 and an additional
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BHATIA
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Affidavit of Evidence in November 2018. His evidence was tendered
on 01.11.2018, and his cross-examination commenced on 04.12.2018.
f) In December 2019, the Respondent filed an Application under
Order VI Rule 17 read with Order VII Rule 14 and Section 151 of the
7
CPC, read with Section 10 of the Family Courts Act, 1984 , seeking
amendment of his pleadings and permission to place additional
documents on record. Thus, by the time the Amendment Application
came to be filed, the trial in the proceedings had already commenced.
The Application sought to introduce, inter alia , averments concerning
the Respondent's alleged change in financial circumstances, his
association with Modular Infratech Pvt. Ltd., the health condition of
his mother, the financial circumstances and lifestyle of the Petitioner,
and subsequent developments concerning the custody and access
arrangements relating to the children.
g) Among the further averments sought to be incorporated were
allegations concerning the change of the children's surname from
“Taneja” to “Nath” , which, according to the Respondent's own
proposed amendment, came to his knowledge in May 2016, as well as
the alleged removal of the children from their school and their
subsequent shifting to the United Kingdom, in respect whereof
reliance was sought to be placed upon a Letter dated 07.03.2018. The
Amendment Application also sought to replace the existing Prayer so
as to seek modification of the terms relating to children's and
household expenses in view of the circumstances pleaded therein.
h) The Petitioner opposed the aforesaid Amendment Application,
principally contending that the same had been filed after
7
Family Courts Act
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BHATIA
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commencement of trial and that the facts and documents sought to be
introduced, save for certain events which were themselves
subsequently pleaded, were either within the knowledge of the
Respondent well before the commencement of trial or did not pertain
to the real controversy arising in the proceedings under Section 25 and
26 of the HMA. It was further contended that the Amendment
Application did not satisfy the requirement of “due diligence”
contemplated under the proviso to Order VI Rule 17 of the CPC.
i) The Respondent, in reply, opposed the challenge to the
amendment and contended that the proposed amendments related to
subsequent events and changes in circumstances relevant to the
modification of the maintenance, custody and visitation arrangements.
It was also contended that proceedings under Sections 25 and 26 of
the HMA, read with the provisions of the Family Courts Act,
contemplate consideration of subsequent changes in circumstances
and ought not to be subjected to a rigid application of the CPC in a
manner which defeats the purpose of such proceedings.
j) Vide the Impugned Order dated 19.10.2020, the learned Family
Court allowed the Amendment Application. The learned Family Court
observed that, although the divorce by mutual consent had taken place
long ago and there had been prolonged litigation between the parties,
the amendments sought were necessary for the just decision of the
case and did not change the nature of the proceedings. It was further
observed that some of the amendments related to events which had
taken place after the divorce and even after filing of the Application
for modification under Section 25 and 26 HMA, but were nevertheless
considered necessary for the just decision of the case.
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BHATIA
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k) Aggrieved by the aforesaid Order, the Petitioner has approached
this Court under Article 227 of the Constitution, principally
contending that the amendment could not have been permitted after
commencement of trial without satisfaction of the requirement of “due
diligence” under the proviso to Order VI Rule 17 of the CPC. The
Respondent, on the other hand, contends that the proceedings under
Sections 25 and 26 of the HMA are concerned with changing
circumstances and, read with Section 10 of the Family Courts Act,
warrant a more flexible approach to the applicability of the aforesaid
requirement. The rival contentions, therefore, call for consideration of
the permissibility of the amendments in the facts and circumstances of
the present case.
SUBMISSIONS ON BEHALF OF THE PETITIONER:
7. Learned counsel appearing for the Petitioner submits that the
Impugned Order is unsustainable, having been passed without
considering the statutory requirement contained in the proviso to
Order VI Rule 17 of the CPC. It is submitted that the Amendment
Application was filed in December 2019, nearly one year after
commencement of trial and almost six years after the issues had been
framed on 27.03.2014. The Respondent had already filed his evidence
and his cross-examination had commenced on 04.12.2018. It is,
therefore, contended that the burden lay upon the Respondent to
demonstrate that, despite due diligence, the matters sought to be
introduced could not have been raised before commencement of trial,
which burden was neither discharged nor even properly addressed by
the learned Family Court.
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BHATIA
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8. Learned counsel further submits that the proposed amendments
are not necessary for determination of the real controversy in the
proceedings under Sections 25 and 26 of the HMA. It is submitted that
the Respondent's substantive case in the modification proceedings
concerns the alleged fraud and circumstances surrounding his consent
to the mutual-consent divorce, and that such question has necessarily
to be determined with reference to the facts and circumstances
existing at the relevant time, i.e., prior to the first and second motions
which were allowed on 29.11.2011 and 11.05.2012 respectively. The
subsequent events sought to be introduced by way of amendment,
according to the Petitioner, do not advance the determination of that
controversy.
9. It is further submitted that several of the facts and documents
sought to be introduced were admittedly within the knowledge of the
Respondent much prior to the filing of the Amendment Application.
In particular, the Respondent's association with Modular Infratech Pvt.
Ltd. had admittedly ceased in 2014; the documents concerning his
financial position related to the period prior to commencement of
evidence; and the Respondent himself had pleaded that the change in
the surname of the children came to his knowledge in May 2016. It is
thus contended that there was no explanation as to why such matters
were not brought on record earlier, despite the issues having been
framed in 2014 and evidence having commenced thereafter.
10. Learned counsel submits that the Amendment Application, in
substance, seeks to introduce a new and materially different case
concerning the Respondent's alleged financial incapacity, the health of
his mother and the alleged conduct of the Petitioner concerning the
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BHATIA
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children, which travels beyond the case originally pleaded in the
modification proceedings. It is contended that the same would alter the
fundamental nature of the proceedings and cannot be permitted under
Order VI Rule 17 of the CPC. Reliance is placed upon the judgment of
the Supreme Court in Revajeetu Builders & Developers v.
8
Narayanaswamy & Sons in support of the submission that an
amendment which changes the basic nature or character of the case
ought not to be permitted.
11. Learned counsel further submits that the learned Family Court
failed to record the specific satisfaction contemplated by the proviso
to Order VI Rule 17 of the CPC. Reliance is placed upon M. Revanna
9 10
v. Anjanamma , Pandit Malhari Mahale v. Monika Pandit Mahale
11
and Vidyabai v. Padmalatha , to contend that once trial has
commenced, the discretion to permit amendment stands circumscribed
by the requirement of “due diligence” and the Court must return a
finding that, despite exercising due diligence, the matter could not
have been raised earlier. It is submitted that in the absence of such
finding, the Impugned Order cannot be sustained.
12. Learned counsel accordingly submits that the Impugned Order,
having permitted the Respondent to introduce the aforesaid
amendments at a belated stage without satisfying the statutory
requirements governing such amendment, is liable to be set aside.
SUBMISSIONS ON BEHALF OF THE RESPONDENT:
13. Per contra , learned counsel appearing for the Respondent
submits that there is no infirmity in the Impugned Order, whereby the
8
(2009) 10 SCC 84
9
(2019) 4 SCC 332
10
(2020) 11 SCC 549
11
(2009) 2 SCC 409
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BHATIA
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Application seeking amendment of the modification proceedings was
allowed. It is submitted that the amendments sought are founded upon
events and circumstances which arose subsequent to the passing of the
mutual-consent divorce decree and are directly relevant to the question
whether the terms of settlement, particularly those relating to the
children's expenses, access and other obligations, require
modification. It is contended that the amendments neither alter the
nature of the proceedings nor introduce an altogether new cause of
action, but merely bring subsequent developments on record for an
effective adjudication of the dispute.
14. Learned counsel submits that the proceedings under Sections 25
and 26 of the HMA are distinct in their nature and are intended to
accommodate changes in the circumstances of the parties even after a
decree has been passed. Section 25 of the HMA expressly empowers
the Court to vary, modify or rescind an order for permanent alimony
and maintenance upon a change in circumstances, while Section 26 of
the HMA enables the Court to pass orders from time to time with
respect to the custody, maintenance and education of minor children.
It is, therefore, submitted that such proceedings cannot be treated as
static proceedings that concluded with the passing of the original
decree.
15. Learned counsel submits that the Family Courts Act is a special
legislation and, in view of Section 10(3) thereof, the Family Court is
not required to be bound by a rigid or technical application of the CPC
in proceedings of the present nature. The object of the Family Court, it
is contended, is to facilitate the settlement of disputes and ascertain
the truth, and the procedural provisions must consequently be applied
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BHATIA
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in a manner which advances substantive adjudication rather than
12
defeats it on technical grounds. Reliance is placed upon A.V.T. v. T. ,
13 14
S.V. v. V. , Dipti Kapur v. Kunal Julka , and Amina Bharatram v.
15
Sumant Bharatram , in support of the submission that proceedings
before the Family Court are not to be subjected to a rigid application
of the CPC where such an approach would impede the ascertainment
of truth and effective adjudication of the matrimonial dispute.
16. Learned counsel further submits that the facts sought to be
introduced by way of Amendment Application are material to the
adjudication of the modification Application. These include the
Respondent's subsequent financial circumstances, the financial
position and lifestyle of the Petitioner, circumstances relating to the
custody and removal of the children, and the alleged change in their
surname. It is submitted that these developments have a direct bearing
upon the continuing obligations arising from the settlement and are
therefore relevant to the relief sought by the Respondent. The
Respondent consequently submits that the proposed amendment
would assist the Court in determining the real controversy and would
avoid multiplicity of proceedings.
17. Learned counsel also submits that the proviso to Order VI Rule
17 of the CPC cannot be applied mechanically so as to defeat an
amendment in proceedings under Sections 25 and 26 of the HMA,
particularly where the very nature of the proceedings contemplates
consideration of subsequent changes in circumstances. Reliance is
placed upon the judgments cited in the written submissions, including
12
2018 SCC OnLine Del 9395
13
2018 SCC OnLine Del 100053
14
AIR 2020 Del 156
15
2016 (231) DLT 682 (DB)
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BHATIA
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16 17
Anshuman Sharma v. Monica Gupta , Malathi Ravi v. B.V. Ravi
18
and Rajnesh v. Neha , to contend that proceedings for modification
under Sections 25 and 26 of the HMA constitute a continuation of the
matrimonial jurisdiction and are capable of taking into account
circumstances arising after the original decree.
18. Learned counsel submits that the fact that the Amendment
Application was filed after commencement of trial cannot, by itself, be
determinative. The proposed amendments concern facts,
circumstances and documents which arose or became relevant at
different stages of the proceedings, including subsequent
developments relevant to the adjudication of the Application seeking
modification under Sections 25 and 26 of the HMA. It is further
submitted that the Amendment Application specifically stated that the
material sought to be brought on record was not available to the
Respondent earlier and that there had been no delay in seeking the
amendment.
19. Learned counsel lastly submits that permitting the amendments
would, rather than prolonging the proceedings, enable the Court to
adjudicate the entire controversy in the existing proceedings and avoid
multiplicity of litigation.
20. On these grounds, learned counsel submits that the learned
Family Court rightly exercised its discretion in allowing the
Amendment Application and that no jurisdictional or legal infirmity
has been demonstrated which would warrant interference by this
16
2008 SCC OnLine Del 1382
17
(2014) 7 SCC 640
18
(2021) 2 SCC 324
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BHATIA
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Court. The present Petition, according to the Respondent, is therefore
liable to be dismissed.
ANALYSIS:
21. Before proceeding to examine the rival contentions, it would be
apposite to delineate the scope of the jurisdiction exercised by this
Court under Article 227 of the Constitution. The jurisdiction under
Article 227 of the Constitution is supervisory in nature and is intended
to ensure that subordinate Courts and Tribunals act within the bounds
of their jurisdiction and in accordance with law. It is not an appellate
jurisdiction and is not intended to enable the High Court to substitute
its own view for that of the subordinate Court merely because another
view is possible.
22. The contours of the aforesaid jurisdiction are well settled. The
power of superintendence is to be exercised sparingly and with a high
degree of judicial discipline, and interference is warranted only where
the order of the Court below suffers from a patent jurisdictional error,
perversity, manifest illegality or results in a gross failure of justice.
The Hon‟ble Supreme Court in Shalini Shyam Shetty v. Rajendra
19 20
Shankar Patil , and Garment Craft v. Prakash Chand Goel has
reiterated the aforesaid limitations and the requirement of judicial
restraint while exercising supervisory jurisdiction.
23. In Shalini Shyam Shetty (supra) , the Hon‟ble Supreme Court
has held that the power under Article 227 of the Constitution is to be
exercised sparingly and only in appropriate cases where interference is
necessary to keep the subordinate Courts within the bounds of their
19
(2010) 8 SCC 329
20
(2022) 4 SCC 181
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BHATIA
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authority. The relevant observations of the Hon‟ble Supreme Court
read as under:
“
( c ) High Courts cannot, at the drop of a hat, in exercise of its power
of superintendence under Article 227 of the Constitution, interfere
with the orders of tribunals or courts inferior to it. Nor can it, in
exercise of this power, act as a court of appeal over the orders of
the court or tribunal subordinate to it. In cases where an alternative
statutory mode of redressal has been provided, that would also
operate as a restrain on the exercise of this power by the High
Court.
( d ) The parameters of interference by High Courts in exercise of
their power of superintendence have been repeatedly laid down by
this Court. In this regard the High Court must be guided by the
principles laid down by the Constitution Bench of this Court
21
in Waryam Singh and the principles in Waryam Singh (Supra)
have been repeatedly followed by subsequent Constitution Benches
and various other decisions of this Court.
( e ) According to the ratio in Waryam Singh (Supra), followed in
subsequent cases, the High Court in exercise of its jurisdiction of
superintendence can interfere in order only to keep the tribunals
and courts subordinate to it, “within the bounds of their authority”.
( f ) In order to ensure that law is followed by such tribunals and
courts by exercising jurisdiction which is vested in them and by not
declining to exercise the jurisdiction which is vested in them.
( g ) Apart from the situations pointed in ( e ) and ( f ), High Court can
interfere in exercise of its power of superintendence when there has
been a patent perversity in the orders of the tribunals and courts
subordinate to it or where there has been a gross and manifest
failure of justice or the basic principles of natural justice have been
flouted.
( h ) In exercise of its power of superintendence High Court cannot
interfere to correct mere errors of law or fact or just because
another view than the one taken by the tribunals or courts
subordinate to it, is a possible view. In other words the jurisdiction
has to be very sparingly exercised.
”
24. In Garment Craft (supra), the Hon‟ble Supreme Court
reiterated that Article 227 of the Constitution does not permit the High
Court to act as a court of first appeal and reappreciate/reweigh
21
AIR 1954 SC 215
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BHATIA
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evidence. The relevant observations of the Hon‟ble Supreme Court
read as under:
“15. Having heard the counsel for the parties, we are clearly of the
view that the impugned order [ Prakash Chand Goel v. Garment
22
Craft ] is contrary to law and cannot be sustained for several
reasons, but primarily for deviation from the limited jurisdiction
exercised by the High Court under Article 227 of the Constitution
of India. The High Court exercising supervisory jurisdiction does
not act as a court of first appeal to reappreciate, reweigh the
evidence or facts upon which the determination under challenge is
based. Supervisory jurisdiction is not to correct every error of fact
or even a legal flaw when the final finding is justified or can be
supported. The High Court is not to substitute its own decision on
facts and conclusion, for that of the inferior court or tribunal.
23
[ Celina Coelho Pereira v. Ulhas Mahabaleshwar Kholkar ] The
jurisdiction exercised is in the nature of correctional jurisdiction to
set right grave dereliction of duty or flagrant abuse, violation of
fundamental principles of law or justice. The power under Article
227 is exercised sparingly in appropriate cases, like when there is
no evidence at all to justify, or the finding is so perverse that no
reasonable person can possibly come to such a conclusion that the
court or tribunal has come to. It is axiomatic that such discretionary
relief must be exercised to ensure there is no miscarriage of justice.
16. Explaining the scope of jurisdiction under Article 227, this
24
Court in Estralla Rubber v. Dass Estate (P) Ltd. has observed :
(SCC pp. 101-102, para 6)
“ 6 . The scope and ambit of exercise of power and
jurisdiction by a High Court under Article 227 of the
Constitution of India is examined and explained in a
number of decisions of this Court. The exercise of power
under this article involves a duty on the High Court to
keep inferior courts and tribunals within the bounds of
their authority and to see that they do the duty expected or
required of them in a legal manner. The High Court is not
vested with any unlimited prerogative to correct all kinds
of hardship or wrong decisions made within the limits of
the jurisdiction of the subordinate courts or tribunals.
Exercise of this power and interfering with the orders of
the courts or tribunals is restricted to cases of serious
dereliction of duty and flagrant violation of fundamental
principles of law or justice, where if the High Court does
not interfere, a grave injustice remains uncorrected. It is
22
2019 SCC OnLine Del 11943
23
(2010) 1 SCC 217
24
(2001) 8 SCC 97
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also well settled that the High Court while acting under
this Article cannot exercise its power as an appellate court
or substitute its own judgment in place of that of the
subordinate court to correct an error, which is not apparent
on the face of the record. The High Court can set aside or
ignore the findings of facts of an inferior court or tribunal,
if there is no evidence at all to justify or the finding is so
perverse, that no reasonable person can possibly come to
such a conclusion, which the court or tribunal has come
to.”
25. Keeping in view the aforesaid scope and parameters governing
the exercise of jurisdiction under Article 227 of the Constitution, this
Court shall now examine the rival contentions and the Impugned
Order to determine whether any jurisdictional or legal infirmity
warranting interference by this Court is made out. The relevant finding
recorded in the Impugned Order are reproduced hereinbelow:
“No doubt the divorce by mutual consent took place long ago
between the parties and there is history of long drawn litigation
between the parties, but at present the applicant is seeking certain
amendments in his application under Section 25(2) read with
Section 26 of HMA. I have also perused the written arguments of
both the parties.
The amendments sought by the applicant are necessary for the just
decision of the case and it does not change the nature of the case.
No doubt, some of the amendments sought are the events which
took place in the life of the parties after the divorce took place and
after filing of the application but they are necessary for the just
decision of the case. Accordingly, the application is allowed.”
26. The Court has considered the submissions advanced by learned
counsel for the parties and perused the material placed on record. The
question which arises for consideration is whether, while considering
the Respondent's Amendment Application, the learned Family Court
was required to apply the provisions of Order VI Rule 17 of the CPC
strictly and in isolation, or whether the said provision was required to
be considered in the context of the special procedural framework
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governing proceedings before a Family Court under Section 10 of the
Family Courts Act, particularly where the proceedings arise under
Sections 25 and 26 of the HMA.
27. The answer to the aforesaid question must necessarily begin
with the legislative scheme underlying the Family Courts Act. The
Statement of Objects and Reasons reflects the legislative recognition
that disputes concerning marriage and family relationships require a
forum and an approach different from that ordinarily adopted in civil
litigation. The legislation was intended to promote conciliation, secure
socially desirable results and reduce the rigidity of procedural and
evidentiary requirements which may impede effective resolution of
family disputes. The Family Courts Act was, therefore, conceived as a
specialised statutory framework within which family disputes could be
dealt with in a manner responsive to their peculiar nature and directed
towards substantial and effective justice.
28. Section 10 of the Family Courts Act gives statutory expression
to this legislative policy. While sub-section (1) makes the provisions
of the CPC applicable to suits and proceedings before a Family Court,
it expressly makes such application subject to the other provisions of
the Act and the Rules. Sub-section (3), in turn, preserves the power of
the learned Family Court to lay down its own procedure with a view
to arriving at a settlement or at the truth of the facts alleged by one
party and denied by the other. The provision is thus not merely an
enabling provision permitting departure from procedure for
convenience; it recognises that the effective adjudication of family
disputes may, in an appropriate case, require a procedural course
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different from that which would ordinarily govern a civil trial. Section
10 of the Family Courts Act is reproduced hereinbelow:
“ 10. Procedure generally .—(1) Subject to the other provisions of
this Act and the rules, the provisions of the Code of Civil
Procedure, 1908 (5 of 1908) and of any other law for the time
being in force shall apply to the suits and proceedings [other than
the proceedings under Chapter IX of the Code of Criminal
Procedure, 1973 (2 of 1974)] before a Family Court and for the
purposes of the said provisions of the Code, a Family Court shall
be deemed to be a civil court and shall have all the powers of such
court.
(2) Subject to the other provisions of this Act and the rules, the
provisions of the Code of Criminal Procedure, 1973 (2 of 1974) or
the rules made thereunder, shall apply to the proceedings under
Chapter IX of that Code before a Family Court.
(3) Nothing in sub-section (1) or sub-section (2) shall prevent a
Family Court from laying down its own procedure with a view to
arrive at a settlement in respect of the subject-matter of the suit or
proceedings or at the truth of the facts alleged by the one party and
denied by the other.”
29. The scope and purpose of the procedural framework
contemplated under Section 10 of the Family Courts Act has also been
considered by this Court in Kusum Sharma v. Mahinder Kumar
25
Sharma . While considering the statutory scheme of the Family
Courts Act, this Court noticed that the Act adopts a less formal
procedure and that, notwithstanding the applicability of the CPC under
Section 10(1) of the Family Courts Act, the learned Family Court is
empowered to evolve its own procedure. Significantly, the Court
noticed that Section 10(3) of the Family Courts Act expressly uses the
expression "truth" and empowers the learned Family Court to devise a
procedure for determining the “truth of the facts” alleged by one party
and denied by the other. The decision thus underscores that the
procedural framework before a Family Court is intended to facilitate
25
2020 SCC OnLine Del 931
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ascertainment of the truth and effective determination of the
substantive dispute. The relevant portion of the aforesaid Judgment is
reproduced hereinbelow:
“ Section 10 of Family Courts Act, 1984
26. The Family Courts Act adopts a less formal procedure.
Although Section 10 of the Act makes the procedure laid down
under the Code of Civil Procedure, 1908 applicable to Family
Court proceedings, it also lays down that the Family Court is free
to evolve its own rules of procedure.
27. Section 10(3) of the Family Courts Act specifically uses the
word „ truth’ and casts a duty on the Family Court to lay down
procedure to determine the truth of the facts alleged by one party
and denied by the other. Section 10 of the Family Courts Act is
reproduced hereunder:
“ Section 10 - Procedure generally
(1) Subject to the other provisions of this Act and the
rules, the provisions of the Code of Civil Procedure, 1908
(5 of 1908) and of any other law for the time being in
force shall apply to the suits and proceedings other than
proceedings under Chapter IX of the Code of Criminal
Procedure, 1973 (2 of 1974)], before a Family Court and
for the purposes of the said provisions of the Code, a
Family Court shall be deemed to be a civil court and shall
have all the powers of such court.
(2) Subject to the other provisions of this Act and the
rules, the provisions of the Code of Criminal Procedure,
1973, (2 of 1974), or the rules made thereunder, shall
apply to the proceedings under Chapter IX of that Code
before a Family Court.
(3) Nothing in sub-section (1) or sub-section (2) shall
prevent a Family Court from laying down its own
procedure with a view to arrive at a settlement in respect
of the subject-matter of the suit or proceedings or at
the truth of the facts alleged by the one party and denied
by the other.”
(Emphasis Supplied)
Truth should be the Guiding Star in the Entire Judicial Process
28. It is the duty of the Court to ascertain the true income of the
parties and then pass the appropriate order relating to maintenance.
Truth is the foundation of justice. Dispensation of justice, based on
truth, is an essential feature in the justice delivery system. People
would have faith in Courts when truth alone triumphs. The justice
based on truth would establish peace in the society.
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29. Krishna Iyer J. in Jasraj Inder Singh v. Hemraj
Multanchand , (1977) 2 SCC 155 described truth and justice as
under:
“8. …Truth, like song, is whole, and half-truth can be
noise! Justice is truth, is beauty and the strategy of
healing injustice is discovery of the whole truth and
harmonising human relations. Law's finest hour is not in
meditating on abstractions but in being the delivery agent
of full fairness. This divagation is justified by the need to
remind ourselves that the grammar of justice according to
law is not little litigative solution of isolated problems but
resolving the conflict in its wider bearings.”
(Emphasis Supplied)
30. In Union Carbide Corporation v. Union of India , (1989) 3 SCC
38, the Supreme Court described justice and truth to mean the
same. The observations of the Supreme Court are as under:
“30. …when one speaks of justice and truth, these words
mean the same thing to all men whose judgment is
uncommitted. Of Truth and Justice, Anatole France said:
“Truth passes within herself a penetrating force unknown
alike to error and falsehood. I say truth and you must
understand my meaning. For the beautiful words Truth
and Justice need not be defined in order to be understood
in their true sense. They bear within them a shining beauty
and a heavenly light. I firmly believe in the triumph of
truth and justice. That is what upholds me in times of
trial….”
(Emphasis Supplied)
31. In Mohanlal Shamji Soni v. Union of India , 1991 Supp (1) SCC
271, the Supreme Court observed that the presiding officer of a
Court should not simply sit as a mere umpire at a contest between
two parties and declare at the end of the combat who has won and
who has lost. The presiding officer has a legal duty of his own,
independent of the parties, to take an active role in the proceedings
in finding the truth and administering justice.
32. In Chandra Shashi v. Anil Kumar Verma , (1995) 1 SCC 421,
the Supreme Court observed that to enable the Courts to ward off
unjustified interference in their working, those who indulge in
immoral acts like perjury, pre-variation and motivated falsehoods
have to be appropriately dealt with, without which it would not be
possible for any Court to administer justice in the true sense and to
the satisfaction of those who approach it in the hope that truth
would ultimately prevail. People would have faith in Courts when
they would find that truth alone triumphs in Courts.
33. In Zahira Habibullah Sheikh v. State of Gujarat , (2006) 3 SCC
374, the Supreme Court observed that right from the inception of
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the judicial system it has been accepted that discovery, vindication
and establishment of truth are the main purposes underlying
existence of Courts of justice.
34. In Himanshu Singh Sabharwal v. State of Madhya
Pradesh , (2008) 3 SCC 602, the Supreme Court held that the trial
should be a search for the truth and not about over technicalities.
The Supreme Court's observation are as under:
“5. … 31. In 1846, in a judgment which Lord Chancellor
Selborne would later describe as „one of the ablest
judgments of one of the ablest judges who ever sat in this
Court‟, Vice-Chancellor Knight Bruce
said [Pearse v. Pearse, (1846) 1 De G&Sm. 12 : 16 LJ Ch
153 : 63 ER 950 : 18 Digest (Repl.) 91, 748] : (De G&Sm.
pp. 28-29):
“31. The discovery and vindication and
establishment of truth are main purposes
certainly of the existence of courts of justice;
still, for the obtaining of these objects, which,
however valuable and important, cannot be
usefully pursued without moderation, cannot
be either usefully or creditably pursued
unfairly or gained by unfair means, not every
channel is or ought to be open to them. The
practical inefficacy of torture is not, I suppose,
the most weighty objection to that mode of
examination,… Truth, like all other good
things, may be loved unwisely—may be
pursued too keenly—may cost too much.
xxxxxxxxx
35. Courts have always been considered to
have an overriding duty to maintain public
confidence in the administration of justice—
often referred to as the duty to vindicate and
uphold the „majesty of the law‟.
(Emphasis Supplied)
35. In Maria Margarida Sequeria Fernandes v. Erasmo Jack de
Sequeria , (2012) 5 SCC 370, the Supreme Court again highlighted
the significance of truth and observed that the truth should be the
guiding star in the entire legal process and it is the duty of the
Judge to discover truth to do complete justice. The Supreme Court
stressed that Judge has to play an active role to discover the truth
and he should explore all avenues open to him in order to discover
the truth. The Supreme Court further observed as under:
“32. In this unfortunate litigation, the Court's serious
endeavour has to be to find out where in fact the truth lies.
33. The truth should be the guiding star in the entire
judicial process. Truth alone has to be the foundation of
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justice. The entire judicial system has been created only to
discern and find out the real truth. Judges at all levels
have to seriously engage themselves in the journey of
discovering the truth. That is their mandate, obligation
and bounden duty. Justice system will acquire credibility
only when people will be convinced that justice is based
on the foundation of the truth.
xxxxxxxxx
35. What people expect is that the Court should discharge
its obligation to find out where in fact the truth lies. Right
from inception of the judicial system it has been accepted
that discovery, vindication and establishment of truth are
the main purposes underlying the existence of the courts of
justice.
xxxxxxxxx
52. Truth is the foundation of justice. It must be the
endeavour of all the judicial officers and judges to
ascertain truth in every matter and no stone should be left
unturned in achieving this object. Courts must give
greater emphasis on the veracity of pleadings and
documents in order to ascertain the truth.”
(Emphasis Supplied) ”
30. A similar view has been taken by the Punjab and Haryana High
26
Court in Karan Puri v. Sonika Chaudhary . While considering an
objection founded upon the procedural requirements of the CPC in
proceedings before a Family Court, the Court examined the interplay
between Sections 10 and 20 of the Family Courts Act and held that the
provisions of the CPC do not apply to proceedings before a Family
Court with their full rigour. It was observed that Section 10(3) vests
the Family Court with the necessary latitude to adopt a procedure
suited to the facts and circumstances of the case for effectively
adjudicating the dispute and ascertaining the truth. The Court,
however, also emphasised that such procedural latitude must remain
consistent with the principles of natural justice, good conscience and
equity. The decision thus supports the view that procedural provisions
26
2023 SCC OnLine P&H 7322
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of the CPC cannot be applied in isolation so as to defeat the special
procedural framework contemplated under the Family Courts Act. The
relevant portion of the aforesaid Judgment is reproduced hereinbelow:
“ 9. Sections 10(1) of the 1984 Act empowers a Family Court to be
a Civil Court for the purposes of exercising all powers vested in a
Civil Court and the provisions of CPC have been made applicable
to the proceedings before the Family Court, but at the same time it
has been expressly stipulated in Section 10(1) of the 1984 Act itself
that such application of CPC shall be “subject to the other
provisions of this Act and the Rules” . Section 10(3) of the 1984
Act postulates that nothing in Section 10(1) shall prevent the
Family Court from laying down its own procedure so as to deal
with the matter in issue before it i.e. for arrival at a settlement in
respect of the lis of any suit/proceedings before it or to determine
the truthfulness of the facts in dispute. This provision by itself
shows that the legislature, while broadly mandating for application
for CPC to proceedings before a Family Court, has vested
discretion in favour of such Family Court to devise a procedure on
its own. The provisions of Section 10(1) and Section 10(3) of 1984
Act, when juxtaposed, reflect the clear legislative intent to the
effect that CPC does not apply compulsorily to proceedings before
Family Court.
9.1. Further a perusal of Section 20 of the 1984 Act shows that it
contains a clause having overriding effect viz-a-viz anything
contained in any other law for the time being in force.
9.2. The Golden Rule of Interpretation (Literal Rule of
Interpretation), as relied upon by the Hon'ble Supreme Court in the
27
judgments of Dikshitulu's case (supra) and Laxmi Narain
28
Dhut's case (supra), when applied in the present scenario to the
provisions of 1984 Act, shows that the language as also
phraseology employed in the legislation in question is precise,
plain, unambiguous and unequivocal. The legislative intent, that
CPC does not mandatorily apply in full force to proceedings under
1984 Act, is clearly decipherable from a bare reading of the
legislation in question.
10. The statement of objects and reasons recorded for enactment of
the Family Courts Act, 1984 reads;
th
“ The Law Commission in its 59 Report (1974) had also
stressed that in dealing with disputes concerning the
family the Court ought to adopt an approach radically
different from that adopted in ordinary civil proceedings
and that it should make reasonable efforts at settlement
before the commencement of the trial. The Civil Procedure
27
(1979) 2 SCC 34
28
(2007) 3 SCC 700
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Code, 1908 was amended in 1976 to provide for a special
procedure to be adopted in suits or proceedings relating
to matters concerning the family. However, not much use
has been made by the Courts in adopting this conciliatory
procedure and the Courts continue to deal with family
disputes in the same manner as other civil matters and the
same adversary approach prevails. The need was,
therefore, felt, in the public interest to establish Family
Courts for speedy settlement of family disputes.
10.1. The Statement of objects and reasons for the enactment in
question i.e. Family Courts Act, 1984 further states:
“The Bill, inter alia, seeks to,-
(g) provide that the parties to a dispute before a Family
Court shall not be entitled, as of right, to be represented
by a legal practitioner. However, the Court may, in the
interest of justice, seek assistance of a legal expert as
amicus curiae;
(h) simplify the rules of evidence and procedure so as to
enable a Family Court to deal effectively with a dispute”
10.2. A critical analysis of the above, when interpreted in light of
the Heydon's Rule of Interpretation (as relied upon by the Hon'ble
Supreme Court in the judgment of R.M.D. Chamarbaugwalla's
29
case -supra), reflects that the 1984 Act was enacted to adopt a
radically different approach from that adopted in ordinary civil
proceedings & simplify the rules of evidence/procedure so that a
Family Court could more effectively deal with a matrimonial
dispute. This aspect, when examined in the backdrop of Section 13
of the 1984 Act (where entitlement, as of right, to a legal
practitioner has been denied and discretion has been vested with
the Family Court to allow assistance of a legal expert) clearly
indicates that the technicalities & intricacies of the CPC are not to
apply to the proceedings before the Family Court. A bare perusal
of Section 14 of the 1984 Act shows that the same has also been
introduced to wither away the rigours of Evidence Act, 1872 & the
Family Court has been empowered to take any material into
evidence which as per its opinion furthers the cause of effective
adjudication of a matrimonial dispute. The Bombay High Court
30
in Shivanand Damodar Shanbhag's case (supra) has also held
that the Family Court should not go into technicalities of the
Evidence Act and should take a broad decision on the material
placed before it.
11. The 1984 Act is a special law brought in by legislation
exclusively for adjudicating matrimonial lis. CPC is a general
procedural law for civil litigation. Also, CPC was enacted in the
year 1908 whereas the Family Courts Act has been enacted in the
29
1957 SCC OnLine SC 11
30
(2013) 16 RCR (Civ) 623
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year 1984. The 1984 Act has been brought into force in Haryana
w.e.f. 02.11.1992, in Punjab w.e.f. 01.01.2013 and in Union
Territory, Chandigarh w.e.f. 16.02.2015. Therefore, it is clear that
the 1984 Act is not only a special legislation but has also been
enacted subsequently in point of time than CPC. Hence, it would
be pragmatic approach; as per principle of generalia specialibus
non derogant (as relied upon by Hon'ble Supreme Court in
31
judgment of Jose Paulo Coutinho's case - supra) as well, to come
to an inevitable conclusion that Family Courts are not fully bound
by provision of CPC.
*
13. As an upshot of above discussion, the following principles of
law can be culled out:
(I) Sub Section (3) to Section 10 read with Section 20 of
the Family Court Act, contains non-obstante clause and
gives supremacy to the provisions of the said Act, vis-à-
vis the provisions of other enactments/Acts.
(II) CPC, 1908 is not applicable with its full rigours to
proceedings under the Family Courts Act, 1984. In other
words; a Family Court is entitled to lay down its own
procedure, as warranted by facts/circumstances of a given
case and it is not bound by the procedural rigours of CPC,
1908. However, while devising its such own procedure,
the Family Court ought to ensure that such procedure is in
consonance with the basic cannons of the jurisprudence
such as principles of natural justice, good conscience and
equity.
(III) A Family Court is well within its powers to take into
evidence any material, which in the judicial discretion of
such Family Court, may be essential for effectively
adjudicating a lis before it whether or not such material
fulfills the requirements of Evidence Act, 1872. However,
while exercising such discretion, the Family Court ought
to bear in mind that receiving of such material by way of
evidence does not violate the basic principles of our legal
system.
(IV) Order VIII, Rule 1-A CPC of 1908 is not a mandatory
provision and rather it is a directive in nature only
especially with respect to the proceedings under Family
Court Act, 1984. A Family Court will be well within its
judicial discretion to take into evidence any material in
terms of sub-rule (3) of Order VIII, Rule 1-A of CPC,
1908 without any formal application for grant of leave by
the defendant. However, while exercising such discretion
the Family Court is required to pass a reasoned order.”
31
(2019) 20 SCC 85
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31. The decision of the Kerala High Court in P. Saraswathi v.
32
Krishnadas P. , is particularly apposite to the issue arising in the
present case. There too, an amendment application before the Family
Court was opposed on the ground that the trial had commenced and
that the requirement of due diligence under the proviso to Order VI
Rule 17 of the CPC had not been satisfied, with reliance being placed
upon Vidyabai (supra) . While examining the challenge, the Court
considered the scope of Sections 10(3) and 20 of the Family Courts
Act and held that, where necessary for arriving at the truth of the facts
in dispute, the Family Court would have jurisdiction to depart from
the procedure ordinarily prescribed under the CPC. The Court further
recognised that proceedings before a Family Court are not of the same
character as ordinary civil proceedings and that the rigour of civil
procedure may not apply with the same strictness. Finding that the
amendment was necessary for an effective determination of the
dispute and caused no prejudice to the opposite party, the Court
declined to interfere with the order allowing the amendment in
exercise of jurisdiction under Article 227 of the Constitution. The
relevant portion of the aforesaid Judgment is reproduced hereinbelow:
“8. Section 10 of the Family Courts Act, 1984 (hereinafter referred
to as „the Act‟) provides that subject to the other provisions of the
Act and the Rules, the provisions of the Code of Civil Procedure,
1908 and of any other law for the time being in force shall apply to
the suits and proceedings [other than the proceedings under
Chapter IX of the Code of Criminal Procedure, 1973] before a
Family Court and for the purposes of the said provisions of the
Code, a Family Court shall be deemed to be a civil court and shall
have all the powers of such court. Sub-section (3) of Section 10 of
the Act provides that nothing in sub-Section (1) or sub-section (2)
shall prevent a Family Court from laying down its own procedure
32
2012 SCC OnLine Ker 12676
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with a view to arrive at a settlement in respect of the subject-matter
of the suit or proceedings or at the truth of the facts alleged by one
party and denied by the other. Sub-section (3) of Section 10 of the
Act contemplates two contingencies; (1) to arrive at a settlement in
respect of the subject matter of the suit or proceeding and (2) to
arrive at the truth of the facts alleged by one party and denied by
the other. Sub-section (3) of Section 10 is an exception to sub-
sections (1) and (2). If for arriving at the truth of the facts, a
deviation from the procedure laid down in the Code of Civil
Procedure is required, the Family Court would have jurisdiction to
resort to the same. Section 20 of the Act provides that the
provisions of the Act shall have effect notwithstanding anything
inconsistent therewith contained in any other law for the time being
in force. Section 13 of the Act states that no party to a suit or
proceeding before a Family Court shall be entitled, as of right, to
be represented by a legal practitioner. The proceedings before the
Family Court and the proceedings before the Civil Court are not of
the same character. Section 16 of the Act provides for reading in
evidence the affidavit of a formal character. The rigor of the
procedure in respect of suits before the Civil Court as such may not
apply in respect of the proceedings before the Family Court.
Speedy settlement of the disputes relating to marriage and family
affairs is aimed at by the establishment of Family Courts.”
32. Section 20 of the Family Courts Act further provides that the
provisions of the Act shall have effect notwithstanding anything
inconsistent therewith contained in any other law for the time being in
force. The cumulative effect of Sections 10 and 20 of the Family
Courts Act is that, although the CPC ordinarily governs proceedings
before a Family Court, its application remains subject to the special
statutory scheme and cannot be treated as displacing the procedural
flexibility expressly conferred upon the learned Family Court by
Section 10(3) of the Family Courts Act. Section 20 of the Family
Courts Act is reproduced hereinbelow:
“ 20. Act to have overriding effect .—The provisions of this Act
shall have effect notwithstanding anything inconsistent therewith
contained in any other law for the time being in force or in any
instrument having effect by virtue of any law other than this Act.”
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33. This does not, however, mean that Section 10(3) of the Family
Courts Act confers an unstructured or unreviewable discretion upon
the learned Family Court. The procedure adopted by the learned
Family Court must remain connected with the statutory object of
facilitating settlement and ascertaining the truth, must bear a rational
nexus with the controversy before it, and must conform to the
principles of natural justice and fairness. The flexibility contemplated
by Section 10(3) of the Family Courts Act is intended to advance
substantial justice and facilitate effective adjudication; it cannot be
employed as a device to disregard fundamental procedural safeguards
or to cause prejudice to a party without justification.
34. The statutory framework assumes particular significance in the
present case since the proceedings before the learned Family Court
arise under Sections 25 and 26 of the HMA. Section 25 of the HMA
contemplates, inter alia , the making of provision for permanent
alimony and maintenance and permits such provision to be varied,
modified or rescinded where there is a change in the circumstances of
either party. Section 26 of the HMA similarly empowers the Court,
from time to time, to make, revoke, suspend or vary orders concerning
the custody, maintenance and education of minor children. The
statutory language thus recognises that the circumstances relevant to
the relief may undergo change and that the Court's consideration of
such relief is not necessarily confined to the factual position obtaining
on the date of the original decree. Sections 25 and 26 of the HMA are
reproduced hereinbelow:
“ 25. Permanent alimony and maintenance .—(1) Any court
exercising jurisdiction under this Act may, at the time of passing
any decree or at any time subsequent thereto, on application made
to it for the purpose by either the wife or the husband, as the case
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33
may be, order that the respondent shall * pay to the applicant
for her or his maintenance and support such gross sum or such
monthly or periodical sum for a term not exceeding the life of the
applicant as, having regard to the respondent‟s own income and
other property, if any, the income and other property of the
34
applicant [the conduct of the parties and other circumstances of
the case], it may seem to the court to be just, and any such payment
may be secured, if necessary, by a charge on the immovable
property of the respondent.
(2) If the court is satisfied that there is a change in the
circumstances of either party at any time after it has made an order
under sub-section (1), it may, at the instance of either party, vary,
modify or rescind any such order in such manner as the court may
deem just.
(3) If the court is satisfied that the party in whose favour an order
has been made under this section has re-married or, if such party is
the wife, that she has not remained chaste, or, if such party is the
husband, that he has had sexual intercourse with any woman
35
outside wedlock, [it may at the instance of the other party vary,
modify or rescind any such order in such manner as the court may
deem just].
26. Custody of children .—In any proceeding under this Act, the
court may, from time to time, pass such interim orders and make
such provisions in the decree as it may deem just and proper with
respect to the custody, maintenance and education of minor
children, consistently with their wishes, wherever possible, and
may, after the decree, upon application by petition for the purpose,
make from time to time, all such orders and provisions with respect
to the custody, maintenance and education of such children as
might have been made by such decree or interim orders in case the
proceeding for obtaining such decree were still pending, and the
court may also from time to time revoke, suspend or vary any such
orders and provisions previously made:
36
[Provided that the application with respect to the maintenance
and education of the minor children, pending the proceeding for
obtaining such decree, shall, as far as possible, be disposed of
within sixty days from the date of service of notice on the
respondent.]”
35. The scope of the power under Section 25 of the HMA to vary,
modify or rescind an order of permanent alimony or maintenance in
33
The words “while the applicant remains unmarried” omitted by Act 68 of 1976, s. 18 (w.e.f.
27-5-1976).
34
Subs. by s. 18, ibid., for certain words. (w.e.f. 27-5-1976).
35
Subs. by s. 18, ibid., for “it shall rescind the order” (w.e.f. 27-5-1976).
36
Ins. by Act 49 of 2001, s. 9 (w.e.f. 24-9-2001)
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changed circumstances has been recognised by the Hon‟ble Supreme
37
Court in Rakesh Malhotra v. Krishna Malhotra , and Kalyan Dey
38
Chowdhury v. Rita Dey Chowdhury Nee Nandy . These decisions
recognise that the relief under Section 25 of the HMA is not
immutable and may be reconsidered in accordance with the statutory
framework where a change in the circumstances of either party so
warrants. The Supreme Court, in Rakesh Malhotra (supra) observed
as follows:
“ 7. At the stage of passing a decree for dissolution of marriage, the
court thus considers not only the earning capacity of the respective
parties, the status of the parties as well as various other issues. The
determination so made by the court has an element of permanency
involved in the matter. However, Parliament has designedly kept a
window open in the form of sub-sections (2) and (3) in that, in case
there be any change in circumstances, the aggrieved party can
approach the court under sub-section (2) or (3) and ask for
variation/modification. Since the basic order was passed by the
court concerned under Section 25(1), by very nature, the order of
modification/variation can also be passed by the court concerned
exercising power under Section 25(2) or 25(3) of the Act.”
In Kalyan Dey Chowdhury (supra) , the Supreme Court held as under:
“ 14. Section 25 of the Hindu Marriage Act, 1955 confers power
upon the court to grant a permanent alimony to either spouse who
claims the same by making an application. Sub-section (2) of
Section 25 of the Hindu Marriage Act confers ample power on the
court to vary, modify or discharge any order for permanent
alimony or permanent maintenance that may have been made in
any proceeding under the Act under the provisions contained in
sub-section (1) of Section 25. In exercising the power under
Section 25(2), the court would have regard to the “change in the
circumstances of the parties”. There must be some change in the
circumstances of either party which may have to be taken into
account when an application is made under sub-section (2) of
Section 25 for variation, modification or rescission of the order as
the court may deem just.”
37
(2020) 14 SCC 150
38
(2017) 14 SCC 200
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36. The continuing nature of the jurisdiction under Section 26 of the
39
HMA is evident from Padmja Sharma v. Ratan Lal Sharma ,
wherein the Supreme Court recognised the amenability of orders
concerning maintenance of children to modification in changed
40
circumstances. Likewise, in Vikram Vir Vohra v. Shalini Bhalla ,
the Supreme Court reiterated that custody orders remain capable of
modification in accordance with the changing needs and welfare of the
child. These decisions reaffirm that relief under Section 26 of the
HMA must remain responsive to subsequent developments, with the
welfare of the child continuing to be the paramount consideration. In
Padmja Sharma (supra) , the Hon‟ble Supreme Court observed as
under:
“ 9. The respondent before us has not appeared instead of notice to
him. We have heard the arguments of the wife ex parte. On 28-2-
2000 an application was filed by the appellant for placing on record
additional documents which are all of the period after filing of this
appeal. No notice has been given to the respondent of this
application. The purpose of the application appears to be to further
enhance the amount of maintenance taking into account the
changed circumstances as the salary of the respondent husband is
stated to have increased by the passage of time. Various documents
like receipts for payment of school fees, buying of books, school
bags, etc. have been filed. We are not inclined to permit this
application at this stage. If circumstances have changed for
enhancement of maintenance the appellant can approach the
Family Court again as an order under Section 26 of the Act is never
final and a decree passed thereunder is always subject to
modification.”
The Supreme Court, in Vikram Vir Vohra (supra) held as follows:
“ 11. The argument of the learned counsel for the appellant, that in
view of the provisions of Section 26 of the Act, the order of
custody of the child and the visitation rights of the appellant cannot
be changed as they are not reflected in the decree of mutual
divorce, is far too hypertechnical an objection to be considered
39
(2000) 4 SCC 266
40
(2010) 4 SCC 409
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seriously in a custody proceeding. A child is not a chattel nor is
he/she an article of personal property to be shared in equal halves.
12. In a matter relating to the custody of a child, this Court must
remember that it is dealing with a very sensitive issue in
considering the nature of care and affection that a child requires in
the growing stages of his or her life. That is why custody orders are
always considered interlocutory orders and by the nature of such
proceedings custody orders cannot be made rigid and final. They
are capable of being altered and moulded keeping in mind the
needs of the child.
13. In Rosy Jacob v. Jacob A. Chakramakkal [(1973) 1 SCC 840]
a three-Judge Bench of this Court held that all orders relating to the
custody of minors were considered to be temporary orders. The
learned Judges made it clear that with the passage of time, the
Court is entitled to modify the order in the interest of the minor
child. The Court went to the extent of saying that even if orders are
based on consent, those orders can also be varied if the welfare of
the child so demands.
14. The aforesaid principle has again been followed in Dhanwanti
Joshi v. Madhav Unde [(1998) 1 SCC 112] .
15. Even though the aforesaid principles have been laid down in
proceedings under the Guardians and Wards Act, 1890 these
principles are equally applicable in dealing with the custody of a
child under Section 26 of the Act since in both the situations two
things are common; the first, being orders relating to custody of a
growing child and secondly, the paramount consideration of the
welfare of the child. Such considerations are never static nor can
they be squeezed in a straitjacket. Therefore, each case has to be
dealt with on the basis of its peculiar facts.
16. In this connection, the principles laid down by this Court in
Gaurav Nagpal v. Sumedha Nagpal [(2009) 1 SCC 42] are very
pertinent. Those principles in paras 42 and 43 are set out below:
(SCC p. 55)
“ 42 . Section 26 of the Hindu Marriage Act, 1955 provides
for custody of children and declares that in any proceeding
under the said Act, the court could make, from time to
time, such interim orders as it might deem just and proper
with respect to custody, maintenance and education of
minor children, consistently with their wishes, wherever
possible.
43 . The principles in relation to the custody of a minor
child are well settled. In determining the question as to
who should be given custody of a minor child, the
paramount consideration is the „welfare of the child‟ and
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not rights of the parents under a statute for the time being
in force.”
That is why this Court has all along insisted on focussing the
welfare of the child and accepted it to be the paramount
consideration guiding the court's discretion in custody order. (See
Thrity Hoshie Dolikuka v. Hoshiam Shavaksha Dolikuka [(1982)
2 SCC 544 : AIR 1982 SC 1276] , AIR p. 1289, para 17.)
17. In the factual and legal background considered above, the
objections raised by the appellant do not hold much water.”
37. The authorities relied upon by the Respondent, including
Anshuman Sharma (supra) , Malathi Ravi (supra) and Rajnesh
(supra) , recognise, in the context of maintenance, custody and allied
matrimonial reliefs, that the learned Family Court may take
cognizance of subsequent changes in circumstances and mould the
relief where the statute so permits. Likewise, the decisions in A.V.T.
(supra) , S.V. (supra) , Dipti Kapur (supra) and Amina Bharatram
(supra) , relied upon by the Respondent, emphasise the procedural
flexibility available to the learned Family Court and the need to avoid
procedural rigidity where it would impede effective adjudication or
ascertainment of truth. These authorities, therefore, support the
proposition that the learned Family Court is not confined to a rigid
procedural approach and may take into account material subsequent
circumstances where relevant to the relief before it. The question,
however, remains whether the learned Family Court could, in the facts
of the present case, permit the proposed amendments in exercise of
that procedural flexibility.
38. The authorities relied upon by the Petitioner, on the other hand,
principally concern the general principles governing amendment of
pleadings under Order VI Rule 17 of the CPC. Vidyabai (supra) , M.
Revanna (supra) and Pandit Malhari Mahale (supra), emphasise the
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statutory requirement of due diligence once trial has commenced and
caution against permitting a party to introduce at a belated stage
matters which were already within its knowledge. Those principles
undoubtedly constitute the ordinary rule governing an amendment
sought under Order VI Rule 17 of the CPC. They cannot, however, be
applied in isolation so as to disregard the special procedural
framework applicable to proceedings before a Family Court.
39. The decision in Revajeetu Builders & Developers (supra) , also
relied upon by the Petitioner, sets out the broader principles governing
amendment of pleadings, including the necessity of the proposed
amendment for determining the real controversy, the prejudice likely
to be caused to the opposite party and the nature of the case sought to
be introduced. Those considerations remain relevant while examining
an application for amendment. They do not, however, require the
Court to disregard the statutory procedural flexibility available to the
learned Family Court, particularly where the proposed material bears
upon the continuing adjudication of maintenance, custody or allied
matrimonial reliefs.
40. The question, therefore, is not whether the proviso to Order VI
Rule 17 of the CPC can ordinarily be ignored after commencement of
trial. The question is whether, in the proceedings before the
learned Family Court, the exercise of its procedural discretion can
be tested solely by the standards applicable to an ordinary civil
trial, without examining the special powers conferred upon it by
Section 10(3) of the Family Courts Act and the nature of the
substantive reliefs under consideration.
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41. In this regard, the mere fact that the Respondent's Amendment
Application was captioned under Order VI Rule 17 of the CPC cannot,
by itself, be determinative of the procedural power available to the
learned Family Court. The Amendment Application also referred to
Section 10 of the Family Courts Act and was filed in proceedings in
which the learned Family Court was exercising jurisdiction under
Sections 25 and 26 of the HMA. The nature of the power exercised by
the learned Family Court must, therefore, be determined having regard
to the substance of the proceedings, the relief sought, the statutory
framework governing the lis and the procedure actually adopted by the
Court, rather than merely by the nomenclature assigned to the
Amendment Application.
42. The proposed amendments, when examined in this statutory
context, cannot be treated as constituting a single and indivisible
factual case. They include, on the one hand, circumstances which
arose after institution of the proceedings, including developments
concerning the children and the stroke suffered by the Respondent's
mother on 11.01.2019. On the other hand, they include averments
concerning the Respondent's association with Modular Infratech Pvt.
Ltd., his financial circumstances for earlier periods, the financial
position and lifestyle of the Petitioner, and the change in the surname
of the children. The latter amendments were within the Respondent's
knowledge prior to the filing of the Amendment Application. That
circumstance, however, may not, in the view of this Court, suffice to
disentitle the Respondent from the benefit of the amendments that
were sought. As has been veritably espoused in the various Judgments
referred to hereinbefore, the purpose of Section 10 of the Family
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Courts Act is to permit a degree of flexibility, keeping in view the
larger intent of the legislature to preserve a certain latitude, denuded
of the more technical trappings that may be canvassed in the
application of the procedural provisions of the CPC in civil
proceedings such as suits. In matters of a more sensitive nature,
particularly those relating to matrimony and children, Courts
necessarily have to consider the object of arriving at a holistic
determination, relatively free from the shackles of procedural
technicalities.
43. The requirement of due diligence, as urged by the Petitioner,
must also be considered in the context of the nature of the proposed
amendments in the Amendment Application. The amendments
pertained to facts and circumstances arising at different stages, some
having arisen earlier and others subsequent to the institution of the
proceedings. Although the Respondent did not furnish a separate
explanation as to why each of the proposed facts could not have been
introduced earlier, and certain matters admittedly could have been
placed before the Court at an earlier stage, the learned Family Court
found the amendments, taken as a whole, necessary for the just
decision of the case. In the context of the special procedural
framework governing proceedings before a Family Court, this Court is
unable to adopt an unduly technical approach by examining each
proposed amendment in isolation solely with reference to when the
Respondent acquired knowledge of the underlying fact. Such an
approach would be contrary to the procedural flexibility contemplated
under the Family Courts Act, particularly where the learned Family
Court has found the material relevant for an effective adjudication of
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the dispute. However, this Court also considers it necessary to add a
cautionary note that the permissibility of the amendments sought may
have to be examined on a case-to-case basis. In cases where it is
found, ex facie and on a non-exclusive basis, that the amendments
have been sought on grounds that are not bona fide , or are calculated
to delay the proceedings or the Court's adjudication, or do not, when
considered holistically, satisfy the test of being necessary for a proper
and just adjudication, the Court may decline to permit the same.
44. The relevant consideration before the learned Family Court,
therefore, was whether the proposed amendments, viewed in the
context of the reliefs sought under Sections 25 and 26 of the HMA,
warranted being brought on record for the proper adjudication of the
dispute. The fact that some of the matters had an earlier point of origin
could legitimately be taken into account while assessing their
evidentiary weight and the prejudice, if any, caused to the opposite
party. It did not, however, in the circumstances of the present case,
necessarily preclude the learned Family Court from exercising its
procedural power to receive and consider such material.
45. This is particularly so because the Impugned Order does not
proceed on the basis that the Respondent possessed an unrestricted
right to amend his pleadings at any stage. The learned Family Court
considered the proposed amendments in the context of the proceedings
pending before it and recorded its satisfaction that the amendments
were necessary for the just decision of the case and did not alter the
nature of the proceedings. The learned Family Court also took note of
the fact that several of the proposed amendments related to events
which had occurred after the divorce and even after institution of the
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proceedings seeking modification. The approach adopted by the
learned Family Court thus cannot be said to be wholly extraneous to
the controversy or unrelated to the statutory jurisdiction being
exercised by it.
46. It is also significant that the substantive reliefs under Sections
25 and 26 of the HMA are themselves capable of being moulded in the
light of changed circumstances. To insist that every fact relevant to
such continuing relief must necessarily be introduced only in the
manner contemplated by Order VI Rule 17 of the CPC, without regard
to the procedural power conferred upon the learned Family Court
under Section 10(3) of the Family Courts Act, would risk importing
into Family Court proceedings a degree of procedural rigidity which
the legislature did not intend. The purpose of Section 10(3) of the
Family Courts Act is precisely to confer upon the learned Family
Court the procedural flexibility necessary for effective adjudication
and ascertainment of the truth.
47. At the same time, this Court is conscious that procedural
flexibility cannot be permitted to operate to the prejudice of the
opposite party. The Petitioner remains entitled to meet the material
sought to be introduced by the Respondent and to contest its
relevance, truth and evidentiary value in accordance with law. The
record, however, does not disclose such a denial of opportunity or
such manifest prejudice as would render the procedure adopted by the
learned Family Court contrary to the principles of natural justice. Nor
does the Impugned Order disclose that the learned Family Court
exercised its discretion for an extraneous purpose or without regard to
the nature of the proceedings before it.
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48. The fact that the trial had commenced, and that the Respondent
had already tendered his evidence and his cross-examination had
commenced, undoubtedly constitutes a relevant circumstance. It
cannot, however, be regarded as determinative in isolation. The stage
of the proceedings has to be balanced against the nature of the
proceedings, the character of the relief sought, the relevance of the
proposed material and the statutory power of the learned Family Court
to adopt an appropriate procedure for arriving at the truth. The proviso
to Order VI Rule 17 of the CPC may constitute an important
procedural consideration, but it cannot be permitted to be elevated into
an inflexible rule which renders Section 10(3) of the Family Courts
Act incapable of meaningful application.
49. The approach adopted by the learned Family Court is also
consistent with the object underlying the special procedure prescribed
for family disputes. Where the Court is required to determine
questions concerning maintenance, financial circumstances, custody,
visitation and the welfare of minor children, the adjudication cannot
be effectively undertaken by artificially freezing the factual position at
an earlier point in time. The Court must remain capable of considering
material which bears upon the actual circumstances relevant to the
relief before it, subject always to the requirements of fairness and a
reasonable opportunity to the opposite party.
50. In view of the aforesaid discussion, the objection regarding the
requirement of due diligence does not, in the circumstances of the
present case, warrant interference with the exercise of discretion by
the learned Family Court in permitting the amendments. The
authorities cited by the Petitioner establish the ordinary limitations
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governing amendments after commencement of trial; they do not deal
with a situation in which the Court exercising jurisdiction under the
Family Courts Act has consciously adopted a procedural course
having regard to the nature of the matrimonial proceedings and the
need to ascertain the relevant facts. The said authorities cannot,
therefore, be read as disabling the learned Family Court from
exercising the specific procedural discretion vested in it by Section
10(3) of the Family Courts Act.
51. Equally, the authorities relied upon by the Respondent cannot
be understood as creating an unrestricted right in a litigant to amend
pleadings at any stage merely because proceedings under Sections 25
and 26 of the HMA are continuing in nature. Their significance lies in
recognising that subsequent circumstances may be relevant to the
substantive relief and that the learned Family Court must retain
sufficient procedural latitude to take such circumstances into account.
Whether particular material ought ultimately to be relied upon, and
what evidentiary weight it deserves, remains a matter for the learned
Family Court to consider in accordance with law.
52. The present case must, therefore, be viewed not as one in which
the learned Family Court disregarded a mandatory statutory
prohibition, but as one in which it exercised the procedural flexibility
available to it under the Family Courts Act while dealing with
proceedings involving continuing matrimonial reliefs. The Impugned
Order reflects due consideration of the nature and relevance of the
proposed amendments and does not disclose any manifest
jurisdictional error, consideration of irrelevant factors, or denial of a
fair opportunity to the Petitioner.
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53. The scope of interference under Article 227 of the Constitution
is also well settled. The supervisory jurisdiction is intended to keep
subordinate Courts within the bounds of their jurisdiction and to
correct patent jurisdictional errors, perversity or grave dereliction of
duty; it is not an appellate jurisdiction to substitute the view of this
Court for a view reasonably taken by the subordinate Court. Where
the subordinate Court has exercised a discretion vested in it upon
considerations germane to the controversy, interference is not
warranted merely because another view may also be possible.
54. In the present case, the learned Family Court was exercising
jurisdiction under a special statutory enactment which expressly
confers upon it the power to devise its own procedure for arriving at a
settlement or at the truth of the facts in dispute. The Impugned Order
reflects an application of mind to the nature of the proposed
amendments and their relevance to the proceedings under Sections 25
and 26 of the HMA. The course adopted by the learned Family Court
cannot, in the circumstances, be characterised as perverse, arbitrary or
wholly contrary to law merely because the Amendment Application
could also have been examined by reference to the stricter
requirements ordinarily applicable under Order VI Rule 17 of the
CPC.
55. Viewed in the context of the limited scope of supervisory
jurisdiction under Article 227 of the Constitution, this Court finds no
patent illegality or jurisdictional infirmity in the approach adopted by
the learned Family Court warranting interference. The statutory
scheme, the nature of the proceedings, the relevance of subsequent
circumstances and the procedural discretion available to the learned
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Family Court, when considered cumulatively, support the course
adopted in the Impugned Order.
CONCLUSION:
56. For the aforesaid reasons, this Court finds no ground to interfere
with the Impugned Order dated 19.10.2020. The learned Family Court
exercised the procedural discretion available to it in accordance with
the statutory framework governing proceedings before a Family Court,
and the exercise of such discretion does not disclose any jurisdictional
error, perversity or manifest failure of justice.
57. In view of the foregoing discussion, the present Petition is
dismissed and the Impugned Order dated 19.10.2020 is upheld.
58. Accordingly, the present Petition, along with pending
Application(s), if any, stand disposed of in the above terms.
HARISH VAIDYANATHAN SHANKAR, J.
OCTOBER 27, 2026/ma
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