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2017 DIGILAW 446 (UTT)

JAYA KANDWAL v. KHUSHIRAM KANDWAL

2017-08-21

RAJIV SHARMA, SHARAD KUMAR SHARMA

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JUDGMENT Per Hon'ble Sharad Kumar Sharma, J. The marriage between the parties to the appeal was solemnized on 25th May, 1994, in accordance with the Hindu rites and rituals. At the time of marriage, the husband was employed as officer in Oriental Bank of Commerce at Delhi and the appellant wife had a qualification of M.A.,B.Ed. 2. It was further a case that at the time of marriage, the wife was teaching and had an independent source of earning. Initially, the matrimony carried on reasonably well but, subsequently, according to the wife, the husband startedraising allegations to constitute cruelty that wife alleged she does not like Garhwali and coupled with the fact that since she normally converses in English, it was not readily acceptable feature by the family of husband which constituted to be one of the grounds for dissolution of marriage. Husband further contended that wife has a habit of leading independent life. 3. These two grounds which has been developed by the husband that the wife alleges that she does not like Garhwali and she normally speaks in English is not a ground which is provided under Section 13 of the Hindu Marriage Act rather to the contrary if a partner who is qualified, speaks a language, other than vernacular, it shows her competence to sustain the family in a better way in the present set of circumstances which is the requirement of present era. However, on these two isolated grounds, when the petition came up for consideration before the Court, the wife filed her written statement, accepting the pleadings partly raised in the plaint and denying the rest of the part alleging thereof, that having a knowledge of English, if it is giving a sense of deprivation to the husband, and if he is feeling complexed, he has to blame himself and it will not tantamount to be acruelty for seeking dissolution of marriage, more particularly, when it is not a ground provided under Section 13 of the Act, nor any rationale person would accept it to constitute cruelty. 4. Even otherwise also the Hon'ble Apex Court has laid down that the ambit of Section 13, for the grant of dissolution of marriage, cannot widen beyond the scope of Section 13 itself. 4. Even otherwise also the Hon'ble Apex Court has laid down that the ambit of Section 13, for the grant of dissolution of marriage, cannot widen beyond the scope of Section 13 itself. Section 13 of the Act deals with the various elements, under which, the marriage could be dissolved, for example, adultery, cruelty, desertion, conversion of religionor becoming of an unsound mindset. Section 13 does not provide for dissolution of marriage on vague grounds taking it to be cruelty. 5. It is a considered view of this Court that each elements for either granting or refusing decree of divorce requires altogether a separate set of evidence and pleadings between the parties. In the proceedings before the Family Court, which are governed by the provision contained under Section 21 of the Hindu Marriage Act, the Family Court is necessarily requires to comply with the provisions contained under Order 14 for framing of an appropriate issue because unless and until a point of determination is formulated by the Court based on pleading, it will not be possible for any of the parties to lead their respective evidence either accepting or denying the plaint allegations or placing their respective case. 6. In the case, at hand, since the allegations, apart from the fact very trifle issues, it was necessary for the Family Court to frame an appropriate issue but looking to the issues framed by the Court which is quoted hereunder :- ^^1- D;k foi{kh }kjk ;kph ds lkFk ‘kkjhfjd o ekufld izrkMuk nh tkrh jgh tSls fd ;kfpdk ds fofHké pj.kksa esa vfHkdfFkr gSA 2- D;k ;kph dks dksbZ okndkj.k izkIr ugha gksrk gS ,oa okn fujLr gksus ;ksX; gSA 3- D;k okn dk ewY;kadu de fd;k x;k gS vkSj iznÙk U;k; ‘kqYd de gSA 4- D;k ;kph ekaxk x;k vuqrks"k ikus dk vf/kdkjh gSA^^ 7. None of the issues were specific in the terms, to be cleared to the parties to argue the case. All the other issues, except issue No.1, were formal in nature and the issue No. 1 which apparently reveals to be covering the entire controversy is vague not specific and not dealing with the respective issues of controversy based on the pleadings of the parties. 8. All the other issues, except issue No.1, were formal in nature and the issue No. 1 which apparently reveals to be covering the entire controversy is vague not specific and not dealing with the respective issues of controversy based on the pleadings of the parties. 8. On account of the fact that the Court has not framed an appropriate issue in co-relation to the pleadings raised by the parties, they being vague not specific, has led into not rendering of the judgment to be without enabling parties to lead and prove their case, after an appropriate opportunities to establish their case to the parties concerned. 9. Non framing of an appropriate issue will also amount to not providing of an appropriate opportunity to the parties making them aware of their case exactly pleaded against them and which they are required to be substantiated by evidence. In the absence of there being specific issue framed and asking the party to the dispute to enter into the proceedings would mean that it was a deprivation of an appropriate opportunity to contest the case. 10. While dispensing a decision, what is expected by a Court is that it ought to give a concerted opinion based on the pleadings of the rival parties and then apply its mind for framing of issue because in the absence of their being coordinated efforts made by the Court in framing a logical issue, based on the pleadings, the judgment rendered cannot be termed to be a judgment on merits. Because in the absence of their being appropriate issues framed, the parties to the dispute would be rendered incapacitated to lead their respective evidence. 11. In that view of the matter, since the learned Trial Court failed to comply with the Section 21 of the Act read with Order 14 of the C.P.C., the impugned judgment is quashed. 12. The matter is remitted back to the learned Family Court to frame specific and appropriate issues based on the pleadings of the parties within the light of the provisions contained under Section 13 of the Act and to decide the same after providing opportunity to the parties by recording findings against each and every issues independently. 13. 12. The matter is remitted back to the learned Family Court to frame specific and appropriate issues based on the pleadings of the parties within the light of the provisions contained under Section 13 of the Act and to decide the same after providing opportunity to the parties by recording findings against each and every issues independently. 13. As the suit happens to be of 2007, the Family Court is requested to decide the suit within time frame as provided under Section 21-B, after framing appropriate issues and letting parties to lead their evidence. 14. The appeal is allowed and the impugned judgment and decree dated 22.02.2012 is quashed. Matter is remitted back to Family Court, Dehradun to decide the matter afresh. 15. No order as to costs.