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2022 DIGILAW 1262 (JHR)

Smita Gupta W/o Shri Dheeraj Kumar Lal v. Dheeraj Kumar Lal S/o Shri Chandra Kishore Lal

2022-10-20

RATNAKER BHENGRA, SHREE CHANDRASHEKHAR

body2022
ORDER : 1. The appellant is aggrieved of the judgment dated 06th December 2017 passed in Matrimonial Suit No. 57 of 2015 (in short, the Divorce Suit) which was instituted by her husband for a decree of divorce on the ground of “cruelty” and “desertion.” 2. By the aforesaid judgment, the Divorce Suit has been decreed on contest. 3. In our opinion, the judgment in Divorce Suit is flawed for more than one reason. 4. The Family Court in the judgment dated 6th December 2017 has framed the following issues: (I) Is the suit, as framed, is maintainable? (II) Whether the applicant has valid cause of action? (III) Whether the respondent has committed cruelty and has deserted the applicant? (IV) Whether the applicant is entitled to a decree of divorce on the ground of cruelty and desertion? (V) To what other relief or reliefs, the applicant is entitled to? 5. A glance at the issue no. III; whether the respondent has committed cruelty and has deserted the applicant - reveals that a composite issue on the grounds of cruelty and desertion has been framed by the Family Court. Under section 13(1)(i-a) of the Hindu Marriage Act, 1955 (in short, HM Act) cruelty is a ground for divorce. Whereas, section 13(1)(i-b) of the HM Act which provides that if a spouse has been deserted for a continuous period of two years immediately preceding the presentation of the petition the other spouse can seek decree of divorce by proving “desertion” is a separate and distinct ground for divorce. As cruelty and desertion are separate grounds for divorce under section 13 of the HM Act, there should have been separate issues framed for both grounds. For the same reason, the issue no. IV which is a consequential issue having direct connection with issue no. III is also defective. 6. Framing of issues is a very important stage in the civil litigation and it is the bounden duty of the Court that due care, caution, diligence and attention must be bestowed by the Presiding Judge while framing the issues [Refer: Ramrameshwari Devi vs. Nirmala Devi, (2011) 8 SCC 249 ]. III is also defective. 6. Framing of issues is a very important stage in the civil litigation and it is the bounden duty of the Court that due care, caution, diligence and attention must be bestowed by the Presiding Judge while framing the issues [Refer: Ramrameshwari Devi vs. Nirmala Devi, (2011) 8 SCC 249 ]. Because the decision of the civil litigation largely depends upon the correct framing of issues, on the importance of framing correct issues, in Makhan Lal Bangal vs. Manas Bhunia, (2001) 2 SCC 652 the Hon'ble Supreme Court has held thus: “19........The real dispute between the parties is determined, the area of conflict is narrowed and the concave mirror held by the court reflecting the pleadings of the parties pinpoints into issues, the disputes on which the two sides differ. The correct decision of civil lis largely depends on correct framing of issues, correctly determining the real points in controversy which need to be decided. The scheme of Order 14 of the Code of Civil Procedure dealing with settlement of issues shows that an issue arises when a material proposition of fact or law is affirmed by one party and denied by the other. Each material proposition affirmed by one party and denied by other should form the subject of a distinct issue. An obligation is cast on the court to read the plaint/petition and the written statement/counter, if any, and then determine with the assistance of the learned counsel for the parties, the material propositions of fact or of law on which the parties are at variance. The issues shall be framed and recorded on which the decision of the case shall depend. The parties and their counsel are bound to assist the court in the process of framing of issues. Duty of the counsel does not belittle the primary obligation cast on the court. It is for the Presiding Judge to exert himself so as to frame sufficiently expressive issues. An omission to frame proper issues may be a ground for remanding the case for retrial subject to prejudice having been shown to have resulted by the omission......” 7. Notwithstanding that, the aforesaid defects in framing of issues could have been ignored had there been proper consideration of the issues arising in the suit. 8. An omission to frame proper issues may be a ground for remanding the case for retrial subject to prejudice having been shown to have resulted by the omission......” 7. Notwithstanding that, the aforesaid defects in framing of issues could have been ignored had there been proper consideration of the issues arising in the suit. 8. The Principal Judge, Family Court, East Singhbhum at Jamshedpur has held as under: “8........From the discussion of the above evidence, I conclude that, the applicant has successfully proved that, the Respondent inflicted cruelty upon him and his family, which is sufficient for dissolution of their marriage. I further find that, it is the case of the applicant that, the Respondent left her matrimonial home for the last time on 18.06.2008 and thereafter, despite repeated attempts on the part of the applicant and his family members she did not return. This case has been filed on 09.02.2015, i.e. after more than two years of desertion by the Respondent. As such, I conclude that, the applicant has successfully proved that, the respondent has deserted him for a continuous period of more than two years immediately preceding the presentation of this case. On the basis of the above discussion, I decide this issue in favour of the petitioner and against the Respondent. 9. Now I move on to decide Issue Nos. I and II, i.e. is the suit, as framed, is maintainable and whether the applicant has valid cause of action? On the basis of discussion of issue no. III, I decide these issues also in favour of the applicant. As such, the suit is maintainable and the applicant has got valid cause of action for the same. 10. Now I move on to decide Issue No. IV and Issue No. V. Issue No. IV is whether the applicant is entitled to decree of divorce on the ground of cruelty and desertion and Issue No. V is to what other relief or reliefs, the applicant is entitled to. On the basis of discussion of issue no. III, I conclude that applicant is entitled to a decree of divorce, both on the grounds of cruelty and desertion, but he is not entitled to any other relief or reliefs. Both these issues are decided accordingly. 11. On the basis of discussion of issue no. III, I conclude that applicant is entitled to a decree of divorce, both on the grounds of cruelty and desertion, but he is not entitled to any other relief or reliefs. Both these issues are decided accordingly. 11. On the basis of discussion made above, it is hereby, ordered that the suit be and the same is hereby decreed upon contest but there would be no order as to cost. The marriage solemnized between the parties on 07.02.2006 is hereby dissolved. Office to prepare decree accordingly.” 9. As is apparent from the aforesaid discussions by the Family Court in the judgment under challenge, after recording its conclusion that the husband has successfully proved that his wife inflicted cruelty upon him and his family just by writing one sentence it has concluded that the wife deserted the husband since 18th June 2008. 10. The expression “desertion” as envisaged under clause (i-b) to sub-section 1 of section 13 of the HM Act has been interpreted by the Hon'ble Supreme Court in Adhyatma Bhattar Alwar vs. Adhyatma Bhattar Sri Devi, (2002) 1 SCC 308 , as under: “7. “Desertion” in the context of matrimonial law represents a legal conception. It is difficult to give a comprehensive definition of the term. The essential ingredients of this offence in order that it may furnish a ground for relief are: 1. the factum of separation. 2. the intention to bring cohabitation permanently to an end - animus deserendi. 3. the element of permanence which is a prime condition requires that both these essential ingredients should continue during the entire statutory period. The clause lays down the rule that desertion to amount to a matrimonial offence must be for a continuous period of not less than two years immediately preceding the presentation of the petition. This clause has to be read with the Explanation. The Explanation has widened the definition of desertion to include “wilful neglect” of the petitioning spouse by the respondent. It states that to amount to a matrimonial offence desertion must be without reasonable cause and without the consent or against the wish of the petitioner. From the Explanation it is abundantly clear that the legislature intended to give to the expression a wide import which includes wilful neglect of the petitioner by the other party to the marriage. It states that to amount to a matrimonial offence desertion must be without reasonable cause and without the consent or against the wish of the petitioner. From the Explanation it is abundantly clear that the legislature intended to give to the expression a wide import which includes wilful neglect of the petitioner by the other party to the marriage. Therefore, for the offence of desertion, so far as the deserting spouse is concerned, two essential conditions must be there, namely (1) the factum of separation, and (2) the intention to bring cohabitation permanently to an end (animus deserendi). Similarly, two elements are essential so far as the deserted spouse is concerned: (1) the absence of consent and (2) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid. The petition for divorce bears the burden of proving those elements in the two spouses respectively and their continuance throughout the statutory period.” 11. There is no discussion by the Family Court about the twin conditions, act of desertion and intention to end cohabitation permanently, on fulfillment of which only a decree of divorce on the ground of “desertion” can be granted. 12. Even as regards cruelty also the discussion by the Family Court is highly unsatisfactory. 13. We are conscious that on the ground of unsatisfactory discussion by the Court below normally there should not be an order of remand provided there is sufficient evidence before the appellate Court to render a decision. But the judgment under challenge is liable to be interfered with for another reason. This is an essential requirement of the principles of natural justice that each party should have sufficient opportunity to put forth and defend his case. The right to lead evidence and to cross-examine witness of the other party is a right essentially emanating from the principles of natural justice. However, the appellant was not afforded sufficient opportunity to defend herself. 14. The proceedings in the Divorce Suit would indicate that on 23rd August 2017 hearing was deferred for enabling the parties to undertake mediation and conciliation exercise. On 06th September 2017, when the Divorce Suit was called out for hearing the Court was informed that mediation had failed. On that day, no one appeared on behalf of the appellant. 14. The proceedings in the Divorce Suit would indicate that on 23rd August 2017 hearing was deferred for enabling the parties to undertake mediation and conciliation exercise. On 06th September 2017, when the Divorce Suit was called out for hearing the Court was informed that mediation had failed. On that day, no one appeared on behalf of the appellant. Surprisingly on the very next date of hearing evidence of the respondent who is appellant before us was closed and the matter was fixed for ex-parte hearing. 15. Order XVIII Rule 1 of the Code of Civil Procedure lays down the procedure for hearing of the suit and examination of the witnesses. After the plaintiff's evidence is closed the other party shall then state his case under sub-Rule 2 to Rule 2 and produce his evidence. During proceeding of a suit, the Court may adjourn hearing and grant time to the parties at any stage of the suit for the reasons to be recorded in writing. Sub-Rule 2 to Rule 1 to Order XVII provides that the Court may impose cost upon the parties seeking adjournment on the day when the case was fixed for hearing. 16. The order dated 21st September 2017 records as under: ^^vkosnd ,oa foi{kh dh iSjoh dh xbZA lk{; ugha gSA foi{kh lk{; cUn fd;k tkrk gSA fnukad 10-11-2017 dks cgl okLrsA** (English Translation) “Attendance filed on behalf of the applicant and the opposite party. There is no evidence. Opposite party's evidence is closed. Put up on 10.11.2017 for argument.” 17. As would appear from the aforesaid order, no opportunity was given to the appellant to lead evidence. No reason has been recorded by the Family Court nor has it been indicated in the order dated 21st September 2017 that the appellant who was the opposite party there had either declined to produce evidence or prayed for time to lead evidence. The procedure adopted by the Family Court was patently illegal and cannot be approved in law. Apparently, that was an unfair trial. 18. For the aforesaid reasons, finding serious procedural irregularities during trial of the Divorce Suit, the judgment dated 06th December 2017 and decree dated 16th December 2017 prepared in Matrimonial Suit No. 57 of 2015 are set aside. 19. Resultantly, Matrimonial Suit No. 57 of 2015 is restored to its original file. 20. Apparently, that was an unfair trial. 18. For the aforesaid reasons, finding serious procedural irregularities during trial of the Divorce Suit, the judgment dated 06th December 2017 and decree dated 16th December 2017 prepared in Matrimonial Suit No. 57 of 2015 are set aside. 19. Resultantly, Matrimonial Suit No. 57 of 2015 is restored to its original file. 20. As indicated hereinabove, the issues on “cruelty” and “desertion” shall be dealt separately by the Family Court, after granting opportunity to the appellant to adduce evidence. The Matrimonial Suit No. 57 of 2015 shall be fixed for appearance of the parties on 24th November 2022. On that day, the Court shall grant time to the appellant for producing her evidence through examination-in-chief of her witnesses.