J.N Bhat, J.:— This is an appeal against the order of the learned District Judge, Srinagar dated 2-12-65 whereby he has allowed amendment of plaint as prayed for by the respondent. Moreover, under the provisions of Section 14 of the Hindu Marriage Act (hereinafter to be referred to as the Act) he has condoned the delay of a few months from the statutory period of three years as contained in Section 14(1) of the Act for reasons recorded by him.
2. The facts that have given rise to this appeal are that the respondent filed a petition apparently under Section 13 of the Act on 21-11-64 against the appellant. The petitioner prayed for a decree of divorce or such other alternative relief as the facts of the case would warrant. The marriage of the parties admittedly has taken place on 11th June, 1962. On the date of the presentation of the application two years, five months and ten days had elapsed after the performance of the marriage as held by the learned District Judge. When this petition was presented an objection was taken on 18-3-65 by the wife that the application being three years before the solemnization of the marriage and no grounds of exceptional hardship to the petitioner or of exceptional depravity on the part of the respondent having been pleaded, the petition could not be entertained and should be dismissed. On this the petitioner again put in an application on 26-3-65 stating therein that he would be put to hardship if the application were dismissed and there was only a short time to complete the three years as laid down by law. The matter remained pending. Then by means of an application dated 18th October, 1965 the respondent husband put in a detailed amended plaint wherein he made a long list of allegations against the appellant. In paragraph 11 of that amended petition he requested the Court for condonation of the period by which his original application for divorce was premature. Objections were filed against this application of the respondent by the wife. These objections are without any date but they seem to have been presented on 6-11-65. It has been pointed out during arguments by the learned counsel for the respondent that the appellant has not specifically refuted the request for condonation of the time as contained in Para 11 of the amended petition or the petition seeking amendment. Thereafter the Court heard arguments and by its order under appeal it held that as all efforts at a compromise had failed, the Court was of the opinion that the petition should not be thrown out and secondly that more than three years had elapsed, when this petition for amendment was presented. If the original petition be ordered to be thrown out, “hardly will the ink have dried up on the order sheet when another application will be made”. Therefore, exercising is discretion under S. 14(1) of the Act the trial court condoned the delay and allowed the amendment excepting the allegations mentioned in Para 3(c), (d) and (f) of the application of 28-10-65. It is against this order that the present appeal has been preferred. As the order under appeal is a very substantial one and besides a very important matter in issue between the parties, has been decided by this order we think the appeal is competent under S. 28 of the Act.
3. Mr. Sunder Lal counsel for the appellant has argued that if an application is made before three years have elapsed since the date of the marriage and seeks divorce under Section 13 of the Act, the Court is not competent to entertain the petition, unless of course condonation is sought on the ground that the case is one of exceptional hardship to the petitioner or of exceptional depravity on the part of the respondent. Neither fact was mentioned in the petition nor in the subsequent application of 26-3-65. Therefore the Court had no power to condone the delay and continue the application. The application should have been rejected leaving the parties to take such recourse as would be available to them under law.
4. On the other hand Mr. Tiku for the respondent has argued that the allegation in his original petition which purports to be under Section 13 of the Act is an allegation which can justify a decree for judicial separation under Section 10 of the Act and for divorce under Section 13. It is a composite application and the relief claimed is also one for divorce or any other relief that the Court may think fit. Therefore according to Mr. Tiku even if the statutory period of three years had not elapsed which is necessary in the case of an application for divorce, the application could be treated as an application for judicial separation, and when he applied for amendment of the original application praying for a decree of divorce after giving a detailed set of facts on 28-10-65, more than three years had elapsed, the Court was therefore competent to allow the respondent to amend the petition. Moreover Mr. Tiku states that in the objections presented on 6-11-65, the appellant had not taken any specific objection Page: 91to the allegation contained in Para 11 and other similar paras as contained in the application of the respondent dated 28-10-65. We shall consider both these arguments.
5. The trial Court has however in its order condoned the delay, although this part of the case did not find any place in the argument of the learned counsel for the parties, we think it necessary that something should be said about it. In our opinion Section 14 has been enacted simply to discourage young spouses from taking recourse to legal proceedings in a frivolous, hasty, rash or irresponsible manner so that the ship of marriage may not be wrecked in the first storm of married life. This is the principle behind this proviso. However, in this Act the terms ‘exceptional hardship’ or ‘exceptional depravity’, have not been denned, but these terms have been used in Section 2(1) of the U.K Matrimonial Causes Act, 1950. Under that Act these expressions have been the subject matter of interpretation. In Bowman v. Bowman, 1949-2 All ER 127 Denning, LJ observed:—
“This case raises the question in what circumstances leave ought to be given to a spouse to present a petition for divorce within three years of marriage. By the Matrimonial Causes Act, 1927, Section 1(1) that leave can only be granted on the ground of exceptional hardship suffered by the would-be petitioner or of exceptional depravity on the part of the proposed respondent. The answer depends on the use of the word “exceptional.” The case put tor-ward by the applicant must disclose ‘exceptional’ depravity on the part of the other spouse or ‘exceptional’ hardship suffered by the applicant. This involves an inquiry into the degree of depravity alleged or the degree of hardship said to be suffered — an inquiry which, it is plain, may prove to be a difficult task and it is not surprising that different judges have interpreted the provisions of Section 1(1) in different ways.
“The only cases in which the question arises are of course, those of adultery or of cruelty. If there is nothing more than adultery with one person within the first three years of marriage that may be considered ordinary depravity. There is, I am sorry to say, nothing exceptional about that situation, and it does not involve exceptional hardship on the innocent spouse, the applicant. The stress that it causes is one which may have to endure. If however the adultery is coupled with other matrimonial offences, e.g, if a husband not only commits adultery but also deserts his wife in favour of another woman, or if he is cruel to her, thus causing her not only distress by his adultery but also injury by his violence, then, even if his offence cannot be stigmatised as exceptional depravity on his part nevertheless it does involve exceptional hardship suffered by the wife. Even if the adultery is not coupled with another matrimonial offence, nevertheless its consequences may involve exceptional hardship to the applicant, as, for instance, when a wife as a result of her adultery has a child by another man so that the husband, if he took her back, would have to maintain another man's child or it may be committed in such aggravating circumstances as to show exceptional depravity. The husband who commits adultery within a few weeks of marriage, and who commits adultery promiscuously with more than one woman or with his wife's sister, or with a servant in the house, may probably be labelled as exceptionally depraved. Such at least, are instances, when sitting in chambers, I have given leave to a spouse to present a petition for divorce within three years of marriage.”
6. In Fisher v. Fisher, 1948 P. 263, both parties were under 20 years of age at the time of their marriage and served in HM forces. The wife was not willing to have any child and did not allow sexual intercourse without a contraceptive even during the honeymoon. When once the husband came home on leave, she refused sexual intercourse as he had no contraceptive. Three or four months after the marriage, the wife wrote to the husband that she did not like to live with him and suggested a divorce. Sometimes later she admitted to have committed adultery with an American Sailor on various occasions. The husband applied for leave to present a divorce petition though the period of three years from the date of marriage had not elapsed. It was held that the facts of the case did not disclose ‘exceptional hardship’ or ‘depravity’ so that the permission was withheld.”
7. There are a few other authorities under this Act which need not be cited.
8. In our opinion the facts of this case do not warrant the conclusion of the learned District Judge that it was a fit case in which delay should have been condoned on the mere ground that the parties were young and the appellant had refused to live with her husband. Therefore the case was not one of exceptional hardship to the petitioner.
9. Anyhow this is only one aspect of the matter. When we analyze the arguments of Mr. S. Lal, his only contention is that the present petition, whether we call it a petition for divorce or judicial separation, should be rejected and in the words of this section should not be entertained by the Courts below. But what would be the practical result? It has been rightly pointed out by the learned District Judge that if the present application is dismissed or not entertained the ‘ink will be hardly dry on the order before another application on the same ground shall be presented.’ That is a very serious and important consideration which should weigh with us in disposing of this appeal.
10. Before we take up this aspect of the case, let us consider the alternate argument of Mr. Tiku, i.e, the original petition may be treated as one for divorce or in the alternative for judicial separation. He has invited our attention to Para (4) of the original petition in which desertion of the respondent by the appellant is pleaded. This paragraph apparently is not capable of such an interpretation. But at the same time it cannot be said with any amount of certainty that it does not contain, though in a vague and indefinite manner, allegations of desertion. The other point that Page: 92there has not been desertion for the statutory period of two years is not a matter which would justify throwing out of the application in limine. That may be a matter of merits of the case and may result in the dismissal of the application. But there is no bar to such an application being entertained as in the case of an application for divorce. In that case Section 14 definitely states that an application brought before the expiry of three years of the marriage should not be entertained by the Court unless the petition seeks condonation of the period on the grounds mentioned therein. Therefore in our opinion keeping in view that pleadings are not very carefully and artistically drafted, we cannot rule out the suggestion of Mr. Tiku that his original application was a composite application under Sections 10 and 13 of the Act, though it mentioned only Section 13 in the title of the petition.
11. We have to consider another important aspect of the matter. On 28-10-65 more than three years had elapsed after the solemnization of the marriage. The original application was sought to be amended by the respondent and he amplified the grounds taken in the original application of 20th November, 1964. The learned District Judge has disallowed the amendments so far as Paras 3(c), (d) and (f) of the amended petition are concerned. We shall comment on this aspect of his finding towards the conclusion of this order.
12. One more important point of law arises in this case that has not been argued at the bar. Assuming that the original application was for divorce and judicial separation or for divorce simpliciter, it has to be considered whether the application should be rejected on the ground that the application was presented before three years of the marriage and whether the amendment should be allowed for which the application was already made after three years of the marriage. There are authorities both for and against the proposition that the Court can taken into notice certain subsequent events and adjust the pleadings and relief accordingly. Ordinarily the rule of law is that all cases shall be decided on matters which existed on the date of the institution of the suit. Subsequent events should not be taken into consideration which would change the nature of the whole case. There are a number of authorities which lay down that the Court may allow a suit or an application which did not lie when it was actually brought but by reason of subsequent events it can proceed if substantial justice would be done to the parties, by allowing necessary amendments. Amongst the authorities which lay down that subsequent events should not be taken into consideration and the case should be decided on the facts as existed on the date of the institution of the proceedings the following may be mentioned:—
13. (1893) ILR 15 All 399. In that case one K.C Zamindar sued in a Court of revenue to recover an occupancy holding from one B.S.Ms occupancy tenant and that tenant's transferee, G.S to whom, by a transfer which was inoperative under S. 9 of Act No. XII of 1881. B.S purported to make over his occupancy holding. The occupancy tenant died after the suit was filed, but before he had received notice of it, and the transferree being in sole possession of the occupancy holding defended the suit. It was held that the Zamindar's suit must fail, inasmuch as at the time when it was filed he was not entitled to immediate possession of the occupancy holding.
14. In AIR 1926 Madras 594 it was held that if a suit is premature at the date of institution, though not at the date of decision, a decree cannot be granted and the only course in such cases is to dismiss the suit with liberty to bring a fresh suit upon a proper cause of action.
15. In AIR 1951 Madh-B 63 it has been laid down: that a suit or an application must be tried and decided on the cause of action as it existed at the date of its commencement. The exceptional doctrine that the Court may in suitable cases take notice of the facts coming into existence after the filing of the suit or application and give relief on the basis thereof cannot be applied in a case where to do so would be to give manifest advantage or disadvantage to one party. In this case AIR 1926 Mad 594 (Supra) was held to be laying down bad law.
16. In AIR 1959 Andh Pra 9 a D.B of that Court discussed exhaustively the case law on the point and held:—
“It is now well settled that in proper cases the Court is entitled to take note of subsequent events and grant relief to the parties accordingly, if by so doing it can shorten litigation and best attain the ends of justice. The power may be exercised even by the Court of appeal as an appeal is only in the nature of re-hearing.”
17. There is a series of authorities which have consistently held that to mitigate hardship and shorten litigation it is open to Courts to lake note of subsequent events in granting relief provided the substantive rights of parties are unaffected. On this reasoning suits which were premature at the time of their institution were allowed to be continued and even decreed when during the pendency of the suit the right-to relief had accrued to the plaintiff. These authorities may not be discussed in detail, but only a few may be cited to illustrate the point. These authorities are: AIR 1918 Mad 143 (1), AIR 1918 Mad 272; AIR 1953 Bom 342; AIR 1956 Raj 12; AIR 1917 Cal 822; AIR 1958 Ker 245 and AIR 1954 Madh-B 193 (FB).
18. These authorities also take into consideration subsequent changes in law and make it obligatory upon the Courts to so adapt and adjust their reliefs as would be in accord with the changes in law after the institution of the suit.
19. Applying the principles of these authorities of which there are many more, we feel that on the date the application for dissolution of marriage or other relief was presented, the petitioner — respondent was not entitled to a decree for divorce, but his application for judicial separation could proceed. After the lapse of the requisite period of three years the amendment has been sought to specifically Page: 93bring in the allegations which would entitle the respondent to a decree for divorce. The substance of the allegations in both the petitions is the same; only that the amended petition gives out the facts in greater detail. If we take a hyper technical view of the whole matter and reject the original application, no practical benefit or gain to either side will accrue; only that the present application will be rejected and a new one presented before the same Court with the same allegations.
20. In our opinion instead of serving anybody's purpose, it will unnecessarily prolong the litigation. It is in the interest of the parties and doing them substantial justice to allow the amendment as prayed for by the respondent. We do not agree with the learned District Judge that Clauses 3(c), (d) and (f) should not be allowed to be put in the amended petition. The case is yet at the earliest stage. The respondent may even otherwise pray for permission to amend his petition by adding some more grounds. This he could do subject to payment of costs. We do not think that in the circumstances of this case we should refuse the respondent the amendment. But one thing is very clear that the petitioner respondent has been very negligent in drafting his petition. This negligence on his part raised so much of unnecessary controversy and resulted in waste of time of the appellant. If the respondent has wasted his time, for that he has nobody to blame. We think the ends of justice will be met by awarding substantial costs in favour of the appellant.
21. We would, therefore, dismiss this appeal on condition that the respondent will be permitted to amend the original application as prayed for him in his application of 28-10-65 on payment of Rs. 200/- as costs to the appellant, otherwise his original application shall stand dismissed with costs assessed at Rs. 100. The costs shall be paid by the respondent within a month from to-day. If the costs of Rs. 200/- are not paid the original unamended application of the respondent cannot proceed on the ground of judicial separation also because admittedly on the date application was presented desertion did not extend for the statutory period of two years (vide Para 4 of the original application).
22. J.N Wazir, J.:— I agree.
IJ/JRM/G.G.M
23. Appeal dismissed.