Research › Search › Judgment

Jharkhand High Court · body

2016 DIGILAW 1567 (JHR)

Vidyawati Devi v. Dhananjay Kumar Pandey

2016-11-22

H.C.MISHRA, S.N.PATHAK

body2016
JUDGMENT : Heard learned counsel for the appellant and learned counsel for the respondent. 2. The appellant is aggrieved by the Judgment and Decree dated 11th July, 2016, passed by learned Principal Judge, Family Court, Jamshedpur, whereby the Matrimonial Suit, filed by the respondent husband for dissolution of marriage by a decree of divorce under Section 13(1)(i-a) of the Hindu Marriage Act (herein after referred to as the 'Act'), has been decreed by the Court below. 3. While going through the Judgment under appeal and the pleadings of the parties, we find that the petition was filed only under Section 13(1)(i-a) of the Act, by the respondent husband for divorce on the ground of cruelty. There was no allegation against the appellant wife of living in adultery, nor the petition was filed under Section 13(1)(i) of the Act. It was only alleged in the petition that respondent remained non-cooperative in begetting issue through the petitioner and she refused to have issue through the petitioner. She expressed her desire to the petitioner that she would get issue through others or have tube baby. It is stated in the petition that the respondent had been non-cooperative in having physical relationship with the petitioner and this behaviour amounted to cruelty being caused to the petitioner by the respondent. This allegation was denied in the written statement filed on behalf of the respondent and it was also stated that since she did not get any issue for about more than two years, the petitioner, on advise of the respondent, went for treatment to one Dr. Chawala of Jamshedpur, and both of them were treated by the doctor, who found the respondent fit for giving birth to a child, but the petitioner was not found fit for begetting any issue and so the petitioner was medically treated by the doctor. It is also stated that at one point of time the respondent conceived, but after two months there was an abortion of pregnancy. 4. On the basis of pleadings of the parties, five issues were framed by the Court below, one of them being, whether the respondent was living in adultery? It is also stated that at one point of time the respondent conceived, but after two months there was an abortion of pregnancy. 4. On the basis of pleadings of the parties, five issues were framed by the Court below, one of them being, whether the respondent was living in adultery? One fails to understand as to how on the basis of these pleadings, the Court below framed the issue whether the respondent was living in adultery, when the petitioner himself had not alleged any adultery against the respondent in the entire petition, nor had he filed the suit under Section 13(1)(i) of the Act. 5. Not only that, it appears from the Lower Court Records that when such issue was framed, even the petitioner adduced his evidence alleging adultery against the respondent in so many words, and has gone to the extent of stating in his evidence that the respondent started having physical relationships with other persons and since the month of June, 2002, she started spending her nights in different areas of Jamshedpur town with other persons. The other witness examined on behalf of the petitioner appellant also stated like that. This evidence adduced on behalf of the petitioner was again beyond the pleadings. The Judgment of the Court below also appears to have been passed taking into consideration these evidences and mainly, the issue of adultery by the wife has become the ground for granting divorce in the matter. The Court below has given the finding that the evidence that the respondent became pregnant proved the fact that she got pregnancy by living in adultery. 6. We find that the issue relating to adultery, the evidence on this point as well as the finding given by the Court below, in the case, are all beyond the pleadings of the parties. The Judgment passed by the Court below cannot be allowed to continue, nor such evidence which had been adduced without any pleadings could be allowed to continue in the judicial record. 7. The Judgment passed by the Court below cannot be allowed to continue, nor such evidence which had been adduced without any pleadings could be allowed to continue in the judicial record. 7. In the backdrop of these facts, we are left with no option, but to set aside the impugned Judgment of the Court below and also to discard the issues settled by the Court below, as also the entire evidence adduced by the parties in the Court below, and to remand back the matter to the Court below for framing issues strictly in accordance with the pleadings of the parties and allowing the parties to adduce the evidence afresh strictly according to the pleadings of the parties. It goes without saying that the pleadings of the parties shall remain the same. 8. Accordingly, the Judgment and Decree dated 11th July, 2011, passed by the Principal Judge, Family Court, Jamshedpur, in Matrimonial Suit No. 136 of 2002, is hereby, set aside. The issues framed by the Court below and the evidences adduced by both the parties are also discarded and the matter is remanded back to the Court below for deciding the matter afresh in accordance with law, as directed above. 9. Since the matter is old one, the Court below shall take all endeavors to settle the issues, examine the witnesses and decide the matter positively within the period of six months from the date of receiving the Lower Court Records. 10. This appeal is accordingly, disposed of with the directions as above. Let the Lower Court Records be sent back to the Court below along with the copy of this order forthwith.