ORDER
Abdul Hadi, J.
1. The wife, who is the respondent in H.M.O.P. No. 2 of 1992 on the file of Sub Court, Ramanathapuram, filed by the husband for divorce under Sections 12(1)(a), (Marriage not consummated owing to impotence and 13(1)(ib) (desertion) of the Hindu Marriage Act has preferred this civil Revision petition against the order in I.A. No. 12 of 1994, allowing the husband’s petition for amending the abovesaid original petition.
2. The original H.M.O.P. was filed mainly on the ground that there has been no consummation between the spouses because of certain alleged disorders in the health of the respondent, particularly in relation to her vaginal canal. Now, the amendment sought for is for adding mainly the following paragraph, after paragraph 6 of the original petition:-
“The respondent is not of very good character. Even before marriage with this petitioner she was having illicit intimacy with her close relative whose name is Raju. The respondent really wanted to marry Raju, but her parents compelled her to marry this petitioner. This is also another reason for non-cohabitation of the respondent. Now after deserting this petitioner the respondent is now living in adultery with the said Raju. Since the respondent and Raju are living as husband and wife, it becomes impossible for her to live with the petitioner.”
No doubt, consequential amendment is also sought for in the cause of action paragraph of the petition.
3. On 24.2.1995, notice of motion was ordered in this civil revision petition, and on respondent-husband entering appearance through Counsel, I have heard both the learned Counsel.
4. Learned Counsel for the petitioner-wife submits that while the original plea was that the petitioner was impotent, as stated above, the present amendment seeks to set up an entirely new case of adultery by the petitioner with one Raju, who is none other than the petitioner’s sister’s husband. His contention is that there was no character assassination at all in the original petition, but, now in the proposed amendment, an entirely new plea inconsistent with the earlier case, is sought to be set up and the Court below has erred in allowing such an amendment. According to learned counsel for the petitioner, the intention of the respondent is only to harass the petitioner and the proposed amendment is not a bona fide one. He also points out that earlier, the respondent also filed two interlocutory applications, one after another, for examining the petitioner by a gynaecologist, particularly with reference to her vaginal condition and pursuant to the orders passed therein, the petitioner was subjected to such humiliation of examination unnecessarily. He also relied on certain decisions.
5. On the other hand, learned Counsel for the respondent submits that for the very same relief of divorce, only one more additional ground is sought to be raised by the proposed amendment. He also submits that when the court below thinks it fit to allow an amendment, the High Court should not lightly interfere with the said order. He also relied on certain decisions.
6. The Court below has held that whether the adultery pleaded in the proposed amendment is true or not, could be gone into only in the main petition and in considering the amendment petition, the truth or otherwise of the proposed amendment need not be gone into, particularly when only an additional ground is taken up for the very same relief.
7. I have considered the rival submissions. In Dhanapal v. Govindaraja (relied on learned counsel for respondent) it has been held, no doubt with reference to an amendment of plaint in a title suit, as follows:
“It is permissible for the plaintiffs to set up as many roots of title as possible and sometimes they may even be mutually conflicting and inconsistent”.
Though this conclusion was in relation to an amendment asked for in a title suit, I do not see any special reason for not coming to a similar conclusion in a similar amendment asked for in a matrimonial action of the present kind.
8. A Full Bench decision of Madhya Pradesh High Court in Lalit v. Lavina is relied on by learned counsel for the petitioner. The said decision held that divorce on the ground of adultery could be allowed to be incorporated in the petition subsequently, by amendment, provided the ground existed at the time of filing of the petition. The said counsel’s contention is that there is no plea by the respondent that the said ground existed at the time of filing the original petition. In this context, the following allegation by the respondent in paragraph 3 of his supporting affidavit to the abovesaid I.A. may be seen:-
“The respondent herein is the close relative of the petitioner. Petitioner’s mother and respondent’s father are brother and sister. Having in mind, above fact real character of the respondent was not revealed in the main petition. She is not a family girl. Even before marriage she was having illicit intimacy with her close relative whose name is Raju. Even before marriage this fact was brought to the notice of this petitioner. But this petitioner not believed it, simply thought, out of jealous and ill-feeling, the rumour is made. But later from non-cohabitation this petitioner was able to understand the mind of the petitioner, The respondent compelled her for this”.
These specific allegations are no doubt absolutely denied as false in the counter affidavit. However, what the learned Counsel for the respondent points out is that even though before marriage between the parties, the alleged illicit intimacy of the petitioner with the abovesaid Raju was brought to the notice of the respondent-husband, he then thought that it was only a false rumour, but later only he was able to “understand the real mind” of the petitioner herein and that hence the present allegation of adultery is not a case of subsequent event. Anyway, I think that at this stage, it cannot be concluded whether the alleged adultery, if true, is a subsequent event, or an event prior to the petition. Therefore, in my view Lalit v. Lavina, may not of any assistance to either of the parties.
9. At any rate, I have held in Maragadhathammal v. Sivasankara Bhattar, 1994 (2) M.L.J. 51 thus:-
“That apart, when the court below has allowed the amendment, the revisional Court, acting under Section 115, C.P.C. ought not to “lightly interfere with the discretion exercised by the court below in this regard. This effect also, the abovesaid Panchdeo Naraim Srivatstava v. Jyoti Satay, , observes as follows:
‘It is also clear that a revisional court ought not to lightly interfere with a discretion exercised in allowing amendment in absence of cogent reason or compelling circumstances.”
Therefore, I do not think that it would be proper to interfere with the order of the Court below.
10. No doubt, learned counsel for the respondent also relied on M. Koilpillai v. K V. Kannammal to contend that simply because, earlier the petitioner was characterised as impotent in relation to the respondent, it does not mean that she is incapable of committing adultery with another male. I am unable to appreciate this argument in the present case, since after going through the original petition, it appears to me that the impotency alleged was not simply restricted to her alleged impotency with reference to the respondent alone.
11. Anyway, in view of my abovesaid other reasonings, particularly relying on Dhanapal v. Govindaraja and Maragadhathammal v. Sivasankara Brother 1994 (2) M.L.J. 51, I do not think that the impugned order calls for any interference.
12. In the result, the civil revision petition is not admitted, but dismissed. The C.M. Ps., which are for interim stay and for vacating the stay are also consequently dismissed.
Order : In this civil revision petition final order was passed on 25.4.1995. But, just after pronouncing the order, learned counsel for the petitioner submitted that one of his arguments was not considered by me in the abovesaid order and that the decision in Kumaraswami v. R. Nanjappa AIR 1978 Madras 283 (FB) relied on by him also was not considered by me. That is why, pursuant to my order dated 28.4.1995, the civil revision petition is once again posted before me and after hearing further arguments on the abovesaid two aspects, I am pronouncing this order and thereby completing my earlier order dated 25.4.1995.
13. One argument that was not considered, though setout in my earlier order dated 25.4.1995 is that the intention of the respondent-husband was only to harass the petitioner-wife and the proposed amendment was not a bona fide one and that earlier, the respondent also filed two interlocutory applications, one after another, for examining the petitioner by a gynaecologist, particularly with reference to her vaginal condition and pursuant to the orders passed therein, the petitioner was subjected to such humiliation of examination unnessarily. With reference to this argument, what is contended by learned counsel for the petitioner is that the reports of the abovesaid gynaecologist, after examining the petitioner pursuant to the orders in the abovesaid two interlocutory applications were in her favour and only after knowing the contents of the said reports being in favour of the petitioner, the respondent has filed the present interlocutory application mala fide. But, on the other hand, learned counsel for the respondent argues that the abovesaid reports of the gynaecologist were in sealed covers and they have not been opened yet and there was no possibility of the respondent coming to know of the contents thereof and that hence the argument that the present interlocutory application is a mala fide one, has no merit.
14. Taking note of these rival arguments, when I went through the affidavit in support of I.A. No. 12 of 1994, I only found the following allegations:-
“He (husband) filed applications that I should be examined by a doctor. I submitted myself for an examination by a doctor. After that he filed another application for an examination by another doctor. That doctor also examined me. Now on pure imagination and with a view to defame me attributed adultery.”
Thus, I find that in the said affidavit, it is not averred at all that the reports filed by the doctor were in favour of the petitioner and the respondent came to know of the contents of the said reports and thereafter only filed the present application with a mala fide intention, just to harass the petitioner. Therefore, the abovesaid argument of learned counsel for the petitioner fails.
15. Then, coming to the decision in Kumaraswamin v. R. Nanjappa , I find that, after the question referred to the Full Bench was answered, the Division Bench observed as follows, which has been relied on by learned Counsel for the petitioner:-
“Having regard to the age of this litigation, and also for the reason that the amendment sought for sets up a totally different cause of action which ex facie cannot stand on a line with the original pleading, we are unable to allow this application for amendment. A pleading could only be amended if it is to substantiate, elucidate and expand the pre-existing facts already contained in the original pleadings; but under the guise of an amendment a new cause and a case cannot be substituted and the courts cannot be asked to adjudicate the alternative case instead of the original case. Though it is expedient under certain circumstances to take into consideration the supervening facts in the course of a litigation which is long drawn, yet the march and lapse of such time alone cannot be the foundation to mechanically accept the request for amendment because due to such passage of time, several events have happened and several matters have intervened.”
The abovesaid observation turned on different facts. However, even in the said observation, it is mentioned that it may be expedient under certain circumstances to take into consideration the supervening facts in the course of litigation in allowing an amendment of the pleading. As already mentioned by me in paragraph 8 of my order dated 25.4.1995, it cannot be concluded whether the alleged adultery, if true, is a subsequent event. That has to be gone into only at the time of the trial. So, I do not think Kumaraswamy v. R. Nanjappa AIR 1978 Madras 283 also will help the petitioner.
16. The net result is, as already held by my order dated 25.4.1995, this civil revision petition is not admitted, but dismissed. This order shall form part of my earlier order dated 25.4.1995.