Case at a Glance
A couple divorced by mutual consent in 2012 on settlement terms covering the children’s expenses, education, custody and visitation. In 2013 the former husband moved the Family Court under Sections 25 and 26 of the Hindu Marriage Act to modify those terms, and in December 2019 — after his cross-examination had started — sought to amend his application to add later developments. The Family Court allowed the amendment, and the former wife challenged it under Article 227, invoking the due-diligence bar in the proviso to Order VI Rule 17 CPC. The Delhi High Court dismissed her petition, holding that proceedings to vary custody and maintenance are continuing in nature and that Section 10(3) of the Family Courts Act gives the Family Court procedural flexibility, though not an unlimited one.
The parties married on 3 March 1999 and have two children. They separated around October 2010, and a decree of divorce by mutual consent under Section 13B of the Hindu Marriage Act was passed on 11 May 2012, on a settlement dealing with the children’s expenses and education, household expenses, custody and visitation. On 30 July 2013 the former husband filed an application under Section 25 read with Section 26 of the HMA in H.M.A. No. 794/2013 before the Family Court, Saket, seeking modification of those terms. Issues were framed on 27 March 2014, his evidence was tendered on 1 November 2018 and cross-examination commenced on 4 December 2018.
In December 2019 he applied to amend his pleadings under Order VI Rule 17 read with Order VII Rule 14 CPC, Section 151 CPC and Section 10 of the Family Courts Act, 1984, to bring on record later developments, including matters relating to the children’s schooling and move to the UK and the change of their surname (which he pleaded he learned of in May 2016). By order dated 19 October 2020 the Family Court allowed the amendment. The former wife argued that the application came almost a year after trial began and six years after issues were framed, that he had not shown due diligence, and that several facts were already within his knowledge — relying on Revajeetu Builders & Developers v. Narayanaswamy & Sons, (2009) 10 SC CK 0041, (2009) 10 SCC 84, M. Revanna v. Anjanamma, (2019) 02 SC CK 0057, (2019) 4 SCC 332 and Vidyabai v. Padmalatha, (2008) 12 SC CK 0064, (2009) 2 SCC 409.
The Key Question Before the Court
Does the due-diligence proviso to Order VI Rule 17 CPC bar a Family Court from allowing a post-trial amendment in proceedings to modify custody and maintenance terms, given Section 10(3) of the Family Courts Act?
Continuing Reliefs, Flexible Procedure — With Limits
Justice Harish Vaidyanathan Shankar first set the limits of Article 227: supervisory jurisdiction is exercised sparingly and is not appellate, relying on Shalini Shyam Shetty v. Rajendra Shankar Patil, (2010) 07 SC CK 0089, (2010) 8 SCC 329 and Garment Craft v. Prakash Chand Goel, (2022) 01 SC CK 0028, (2022) 4 SCC 181. Turning to the Family Courts Act, the Court noted that Section 10(1) applies the CPC subject to the Act, while Section 10(3) allows the Family Court to lay down its own procedure to arrive at a settlement or the truth, referring to Kusum Sharma v. Mahinder Kumar Sharma, (2020) 08 DEL CK 0016, 2020 SCC OnLine Del 931 and Karan Puri v. Sonika Chaudhary, 2023 SCC OnLine P&H 7322. That flexibility, however, is not unbounded: the procedure must relate to the statutory object, have a rational nexus to the dispute and respect natural justice.
The Court emphasised that reliefs relating to custody and maintenance are continuing and can be varied as circumstances change, relying on Rakesh Malhotra v. Krishna Malhotra, (2020) 02 SC CK 0034, (2020) 14 SCC 150, Kalyan Dey Chowdhury v. Rita Dey Chowdhury Nee Nandy, (2017) 04 SC CK 0160, (2017) 14 SCC 200 and Vikram Vir Vohra v. Shalini Bhalla, (2010) 03 SC CK 0006, (2010) 4 SCC 409. Substance, not the label of the application, governs. Some of the proposed amendments concerned developments after the application was filed, while others were known earlier; earlier knowledge may affect the weight of the material and any prejudice, but does not automatically bar amendment. The Court cautioned that such permission must be judged case by case, and the Family Court ’may decline to permit the same’ if the amendments are not bona fide or are aimed at delay. Since the former wife remains free to contest the relevance, truth and weight of the new material, no prejudice was shown.
What the Court Actually Held
- Supervisory jurisdiction under Article 227 is not appellate; the Family Court’s order showed no jurisdictional error, perversity or manifest failure of justice.
- Section 10(3) of the Family Courts Act allows procedural flexibility, but only within the statutory object and principles of natural justice.
- Proceedings to vary custody and maintenance terms are continuing in nature, so later developments may be brought on record by amendment, even after trial has begun.
- The petition was dismissed and the Family Court’s order dated 19 October 2020 allowing the amendment was upheld.
Why This Judgment Matters
- It clarifies how the strict due-diligence proviso to Order VI Rule 17 CPC interacts with Family Court proceedings on children and maintenance.
- It recognises that a divorce settlement on custody and expenses is not frozen in time when circumstances change.
- It also warns that flexibility cannot be used to delay trials with mala fide amendments.
What Should Advocates Take Away From the Judgment?
For Divorced Parents
- Terms on custody, visitation and children’s expenses agreed at divorce can be revisited under Sections 25 and 26 of the Hindu Marriage Act if circumstances change.
- Changes such as relocation abroad or a change of the child’s surname may be relevant to such proceedings.
For Counsel
- In Family Court amendment disputes, address Section 10(3) of the Family Courts Act and the continuing nature of the relief, not just the Order VI Rule 17 proviso.
- Opposing counsel can still contest the weight of facts known earlier; prejudice must be shown concretely.
- Expect Article 227 challenges to interlocutory Family Court orders to succeed only on jurisdictional error or perversity.
Key Takeaways
- Family Courts have procedural flexibility under Section 10(3), but within limits.
- Custody and maintenance orders are continuing and modifiable.
- Late knowledge of facts goes to weight and prejudice, not automatically to a bar on amendment.
- The High Court declined to interfere with the Family Court’s 2020 amendment order.
Frequently Asked Questions
Can a divorce settlement on child custody be changed later?
Yes. Under Sections 25 and 26 of the Hindu Marriage Act, orders on maintenance and custody can be modified when circumstances change; the Court described such reliefs as continuing.
Is a post-trial amendment always barred in Family Court?
Not always. The Delhi High Court held that, given Section 10(3) of the Family Courts Act and the nature of the relief, the Family Court could allow it, though it may refuse amendments that are not bona fide or are meant to delay.
Did the High Court decide who should get custody or how much should be paid?
No. It only upheld the order allowing the amendment; the merits remain to be decided by the Family Court.
Conclusion
More than fourteen years after the divorce decree, the dispute over its terms continues. The High Court’s ruling allows the Family Court to look at the full picture of what has happened since, while reminding it to keep the trial on track and to refuse amendments that are tactical.
Practical takeaway: When seeking to amend in a modification proceeding, tie each new fact to the change in circumstances and explain when it became known.
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