[S.125 CrPC] Amendment Of Pleadings Can Be Permitted By Family Court Even In Absence Of Amendment Provisions In CrPC: Kerala High Court

The Kerala High Court recently reiterated that an application for amendment can be permitted by a Family Court despite the absence of provisions for amendment in the Code of Criminal Procedure (Cr.P.C.). 

The Single Judge Bench of Justice V.G. Arun relied upon various precedents and proceeded to observe that technicalities would not have any place in maintenance cases under Section 125 of Cr.P.C.

"In my opinion, the objective of Section 125 being to ameliorate the sufferings of destitute wives and children, technicalities have no place in maintenance cases. The attempt should be to assimilate the required details and reach the correct conclusion at the earliest, rather than mulling over mundane objections. The prejudice, if any caused to the husband by the amendment can be offset by permitting him to file an additional counter affidavit/objection," Justice Arun observed. 

The petition-husband challenged the order of the Family Court allowing an application for amendment filed by the respondent-wife. It was contended by Advocates Rajesh Siavaramankutty and Arul Muralidharan that in the absence of any provision for amendment in the Code of Criminal Procedure, the Family Court erred in issuing the impugned order. It was averred that even if the Family Court was said to be vested with the power to permit amendment of pleadings, the same could only be formal in nature. The counsels alleged that the respondents attempted to incorporate new facts and allegations, in order to get over the valid contentions in the objection filed by the petitioner through the amendment. 

Advocate Sruthy N. Bhat refuted the allegation, and averred that the maintenance case, as originally filed, did not contain the requisite details, and that the amendment application was filed for supplementing the pleadings already on record. The counsel placed reliance on a plethora of precedents such as Madhavi v. Thupran (1987), Ramarajan v. Krishnan (2021), Nallan v. Palaniammal (1998), and Sabita Sahoo v. Khirod Kumar Sahoo (1990) to buttress the argument that even in the absence of any specific provision, the Family Court is empowered to permit amendment of pleadings in the interest of justice.

The Court in this case noted that in Madhavi v. Thupran (1987), the High Court had allowed the challenge against the dismissal of the petition by the Magistrate on the ground that the prayer, if allowed, would amount to amendment of pleadings for which the criminal court has no jurisdiction. However, in Linda John Abraham v. Business India Group Company & Ors. (2011), such permission was denied on the basis that the amendment went to the core of the matter and if allowed, would result in substantial change in the complaint. In Nallan v. Palaniammal (1998), the Court had held that even in the absence of any specific provision of law, the Magistrate can allow the amendment application filed in a maintenance petition in the interest of justice, by exercising the discretionary power. The Court further noted that in Sabita Sahoo v. Khirod Kumar Sahoo (1990), it had been held that it would be reasonable to assume that the Magistrate is vested with all ancillary powers necessary for the purpose of effectual and proper exercise of the jurisdiction vested under Section 125 Cr.P.C. and that the Magistrate could permit amendment even in the absence of any provision in the Code. 

The Court also took note of the decision in Kuttan v. Varanamalyam Kuries (P) Ltd. & Anr. (2020) wherein it was observed that, "Though there is no express provision in the Code of Criminal Procedure or the Act empowering a Magistrate to permit amendment of a complaint filed for an offence under S.138 of the Act, in the absence of any prohibition with regard to exercise of such power, the Magistrate can exercise such power in appropriate cases to cause the advancement of justice". 

The Court thus dismissed the petition in the present case by taking the view that technicalities ought not to play a significant role in maintenance cases where the object is to ameliorate the sufferings of destitute wives and children. 

It was added that if any prejudice was caused to the husband by the amendment, the same could be offset by permitting him to file an additional counter affidavit, and the Family Court was directed to accept any such document within 2 weeks of date of receipt of copy of the judgment. 

Case Title: Govindarajan @ Govind v. Vidya & Anr. 

Citation: 2023 LiveLaw (Ker) 304

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