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2001 DIGILAW 188 (PNJ)

Anil Kumar v. Saroj

2001-02-06

R.L.ANAND

body2001
JUDGMENT R.L. Anand, J. - This appeal has been filed against the judgment and decree dated 21.3.1998, passed by the Court of Additional District Judge, Sonepat, who, dismissed the petition of the petitioner-appellant, filed under Section 12 of the Hindu Marriage Act. 2. Shri Anil Kumar, appellant field a petition under Section 12 of the Hindu Marriage Act against the respondent alleging therein that the marriage between the parties was solemnized in village Rukhi Tehsil Gohana on 22.11.1992, according to Hindu rites. After the marriage, the respondent came to the house of the petitioner at village Rukhi District Sonepat and the parties to the marriage co-habited with each other. After a stay of 2 days, the respondent returned to the house of her parents and stayed there for four months. Again the respondent came to the house of the appellant and stayed there for two months. The respondent gave birth to a female child on 2.6.1993 in City Hospital, Sonepat. Baby was born by way of normal delivery. It is alleged by the appellant that respondent conceived the child in the month of September, 1992 and, therefore, the child was conceived much before the date of the marriage. Respondent at the time of the marriage was pRegulation nt by some person other than the appellant. The respondent went to the house of her parents after the delivery of the child. The respondent took Rs. 20,000/- in cash, gold and silver jewellery and her dresses i.e. 8 saries and 20 suits, in the absence of the petitioner. The petitioner took a Panchayat, consisting of Shri Attar Singh, Narain Singh and Kamal Singh, to the house of the father of the respondent in June 1993. The Panchayat dissolved the marriage on the ground that respondent was pRegulation nt by some person other than the appellant. Now the respondent has started claiming again that she is the wife of the appellant. It was further averred by the petitioner that when respondent was living with him at his house she used to misbehave with him. Her behaviour was cruel towards him and his family members and when the petitioner objected against the conduct of the respondent, the latter threatened to commit suicide. So much so the respondent even gave the threat that she would implicate the petitioner-appellant in a false case of dowry. Her behaviour was cruel towards him and his family members and when the petitioner objected against the conduct of the respondent, the latter threatened to commit suicide. So much so the respondent even gave the threat that she would implicate the petitioner-appellant in a false case of dowry. The respondent started humiliating the petitioner and his family members and it was not safe for the appellant to keep the respondent with him any more. Respondent has falsely filed a complaint against the appellant and his family members in the police-station and all these acts allegedly committed by the respondent, constituted the cruelty. 3. Notice of the petition was given to the respondent. The respondent denied the allegations of the petitioner-appellant. The stand of the respondent is that the petitioner-appellant had been performing sexual intercourse with her. The delivery of the baby was not normal. She was not pRegulation nt at the time of the marriage. Rather she conceived pRegulation ncy from the sperm of the appellant. Respondent has denied other allegations of the petitioner and prayed for the dismissal of the petitioner-appellant. 4. The appellant filed a rejoinder to the written statement of the respondent in which he reiterated the allegations made in the petition by denying those of the written statement and from the pleadings of the parties the following issues were framed :- 1. Whether the respondent was, at the time of marriage, pRegulation nt by some person other than the petitioner ? OPP 2. Whether the respondent has treated the petitioner with such degree of cruelty that the marriage has irretrievably failed ? OPP 3. Whether the petition is not maintainable in the present form ? OPR 4. Whether the petition is beyond limitation ? OPR 5. Relief. 5. The parties were given the opportunities to lead evidence and on the conclusion of the proceedings, issue No. 1 was decided in favour of the petitioner and against the respondent. Issue No. 2 was decided against the petitioner and in favour of the respondent. Issues No. 3 and 4 were decided in favour of the respondent and against the petitioner and finally the petition was dismissed vide the impugned judgment and decree dated 21.3.1998. 6. Issue No. 2 was decided against the petitioner and in favour of the respondent. Issues No. 3 and 4 were decided in favour of the respondent and against the petitioner and finally the petition was dismissed vide the impugned judgment and decree dated 21.3.1998. 6. I have heard Shri M.M. Kumar, learned Counsel appearing on behalf of the appellant and Shri Kulvir Narwal, learned Counsel appearing on behalf of the respondent and with their assistance have gone through the record of the case. 7. The learned Counsel for the petitioner submits that though the appellant does not want to address any argument on issue Nos, 1, 3 and 4 but definitely he wants to press his petition under Section 13 of the Hindu Marriage Act because the petitioner was seeking the divorce on two grounds; firstly, under Section 12 of the Hindu Marriage Act on the plea that respondent was pRegulation nt at the time of the marriage by some person other than the petitioner and secondly that after the solemnisation of the marriage, the respondent has treated the appellant with cruelty. The counsel further submitted that issue regarding cruelty has not been happily framed by the trial Court and, therefore, the counsel appearing on behalf of the petitioner-appellant, in the trial Court, rightly stated that he does not press issue No. 2 as the counsel was hopeful that his client might get a decree of divorce under Section 12 of the Hindu Marriage Act against the respondent. 8. Shri Kulvir Narwal, learned Counsel for the respondent submitted that in the prayer clause the petitioner has not made a prayer that a decree for divorce on the ground of cruelty be awarded to him. I do not subscribe to the argument raised by the learned Counsel for the respondent. The court can always mould or grant the relief to the petitioner if that relief is discernible and follows from the record. 9. Shri Kulvir Narwal, learned Counsel for the respondent appearing on behalf of the respondent further submitted that the petitioner-appellant now cannot get a decree for divorce even on the ground of cruelty under Section 13 of the Hindu Marriage Act as the appellant had given up the ground of cruelty as alleged by him in the petition and now the plea raised by the learned Counsel for the appellant is an after-thought. 10. 10. I have considered the rival contentions of the parties and in my opinion, this case is liable to be remanded. So far as the relief under Section 12 of the Hindu Marriage Act is concerned, this relief certainly is not open to the appellant in view of the fact that marriage between the parties was solemnized on 22.11.1992. The petition was filed in the trial Court on 10.1.1997. It ought to have been filed within one year from the date of the marriage. The petition was hopelessly barred by limitation. Therefore, the trial Court was justified in declining the relief to the appellant under Section 12 of the Hindu Marriage Act. 11. With regard to the alleged ground of cruelty, I am of the opinion that this issue has not been rightly framed by the trial Court. As per Section 13(1)(ia) of the Hindu Marriage Act, a party to the marriage, which has been solemnised after the commencement of the Hindu Marriage Act, can seek a decree of divorce on proving that the opposite party had treated the petitioner with cruelty. The reading of the petition would show that in para No. 5 of the petition, the petitioner-appellant has specifically alleged certain acts of cruelty on the part of the respondent. It is a different matter whether the petitioner ultimately will be able to prove the alleged acts of cruelty or not but definitely a cause of action under Section 13(1)(ia) has arisen. The trial Court has not rightly drafted issue No. 2. It was the duty of the trial Court to frame the issue in the light of the provisions of Section 13 of the Hindu Marriage Act. By non-framing of a proper issue, a serious prejudice has been caused to the petitioner-appellant. Therefore, this Court is of the opinion that this case should be remanded by framing proper issue and the parties should be given a chance to lead evidence in support of their contentions. 12. Resultantly, this appeal is allowed and the impugned judgment and decree is hereby set aside with the observation that the trial Court shall now give finding on the issue which has been framed by this Court. The issue runs as follows :- "Whether the respondent, after the solemnisation of the marriage, has treated the petitioner with cruelty as alleged in para No. 5 of the petition. The issue runs as follows :- "Whether the respondent, after the solemnisation of the marriage, has treated the petitioner with cruelty as alleged in para No. 5 of the petition. If so, to what effect ? OPP" 13. The trial Court should give opportunities to both the parties to lead evidence on the aforesaid issue and thereafter it will give a specific finding with regard thereto. The parties through their counsel are directed to appear before the trial Court on 1.3.2001. Record of the trial Court be sent back forthwith. The trial Court is also directed to dispose of this case expeditiously preferably within six months. Appeal allowed.