HIGH COURT OF CHHATTISGARH. BILASPUR DIVISION BENCH CORAM: HON'BLE MR. T.P. SHARMA AND HON'BLE MR. R.L. JHANWAR, JJ. APPELLANT: RESPONDENT: First Appeal (M) No.4 of 2008 Smt. Gayatri Versus Hori Lal JUDGMENT FOR CONSIDERATION HON'BLEMR.JUSTICER.L.JHANWAR Sd/- T.P. Sharma Judge Sd/- R.L. Jhanwar Judge th Post for pronouncement oforder on 7l" December, 2009 Sd/- ^ / HIGH COURT OF CHHATTISGARH. BILASPUR DIVISIQNBENCH ^ CORAM: HON'BLE MR. T.P. SHARMA AND HON'BLE MR. R.L. JHANWAR, JJ. APPELLANT/: (Non-applicant) First Appeal (M) No.4 of 2008 Smt. Gayatri wife of Hori Lal Vishwakarma, aged about 24 years, R/o C/o father Chhote Lal Vishvakarma, 2/20, East Karithapara, Sarkari Kunwa, Dhamapur, Jabalpur (M.P.) Xersus Hori Lal son of Ramcharan Vishvakarma, aged about 37 years, R/o Borsibhata, Durg/ Tahsil & Distt. Durg (C.G.) - Rungta College of Engineering and Technology Kohka Kurud Road, Via Jamul Cement Works, Bhilai 490024, Distt. Durg (C.G.) {Firstappeal (M) underSection 19 (1) ofthe Family CourtsAct, 1984} V. Present: Mr. Malay Kumar Bhaduri, counsel for the appellant. Mr. Amiyakant Tiwari, counsel for the respondent. RESPONDENT/: (Applicant) JUDGMENT (7th December, 2009) The followina iudament of the Court was delivered bv T.P. Sharma. J: - 1. Challenge in this appeal is to the judgment & decree dated 27-12-2007 passed by the 2nd Additional Principal Judge, Family Court, Durg (for short 'the Family Court') in Civil Suit No.43A/2007, whereby the Family Court has decreed the suit for dissolution of marriage by a decree of divorce. 2. Judgment & decree are impugned on the ground that without any evidence of willful desertion and without framing any issue on the ground of desertion as alleged by the respondent, the Family Court has decreed the suit on the ground of cruelty and thereby committed illegality. 3. As per the pleadings of the respondent, the parties are governed by the Hindu law and are legally wedded spouses. Marriage between the parties took place on 18-5-2001. The appellant was residing with the respondent till January 2002, but in January 2002 she left the house of the respondent. The respondent went to the house of the appellant to take her back, but the appellant refused to come with the respondent, however, on 29-6-2003 the appellant came with the respondent and again on 31-3-2004 the appellant left the house of the respondent. The appellant has willfully deserted the respondent. The respondent tried to reconcile the problem and even he requested the Police Consultation Centre, but the appellant did not appear before the said Centre. The respondent filed a petition under Section 9 of the Hindu Marriage Act, 1955 (for short 'the Act') where the appellant stated that she is not ready to live with the respondent and finally petition for dissolution of marriage by a decree of divorce was filed. 4. The appellant has denied the adverse allegation of the plaint and specifically alleged that the respondent is in the habit of committing cruelty and torture upon her. The respondent has deserted the appellant and falsely blaming her. 5. On the basis of averments of the parties, the Family Court framed issues and after affording opportunity of hearing, the petition for dissolution of marriage by a decree of divorce was decreed vide the impugned judgment & decree. 6. We have heard learned counsel for the parties, perused the judgment impugned and record of the Court below. 7. Learned counsel for the appellant vehemently argued that the respondent has pleaded and claimed dissolution of marriage by a decree of divorce on the ground available under Section 13 (1) (ib) of the Act on the ground of willful desertion by the appellant which the appellant has denied in her pleading, but no issue relating to desertion has been ^ framed by the Family Court and without any ground & pleading, the Family Court has framed the issues relating to cruelty and without any evidence, the Family Court has decreed the suit for dissolution of marriage by a decree of divorce on the ground of cruelty. Learned counsel further argued that without any evidence of cruelty the judgment & decree impugned are not sustainable under the law. He placed reliance in the matter of Bhagwanti v. Laxmandas Panjwani1 in which the High Court of Madhya Pradesh has held that Misbehaviour in obnoxious manner, filthy language, assault by wife proved by corroborative statements of independent witnesses - Cruelty proved. Learned counsel further placed reliance in the matter of Dr. N.G. Dastane v. Mrs. S. Dastane in which the Apex Court has held that Section 23 (1) (a) of the Act provides for condonation pf cruelty as a defence and once cruelty is condoned, decree cannot be passed on the ground of condoned cruelty. Learned counsel also placed reliance in the matter of Vishnu Dutt Sharma v. Manju Sharma3 in which the Apex Court has held that ground of irretrievable breakdown of marriage is not provided by legislature for granting decree of-divorce in Section 13 ofthe Act, therefore, such ground is not available to any of the parties. Learned counsel relied upon the matter of Katiari Subba Rao v. Katari Seetha Mahalakshmi4 in which the High Court of Andhra Pradesh has held that continuous period of separate living is "must" to entertain ground of desertion. 8. On the other hand, learned counsel for the respondent opposed the appeal and submitted that although the respondent has filed petition for dissolution of marriage under Section 13 (1) (ib) of the Act on the ground 1 2000(1) M.P.LJ. 631 2 (1975)28cc 326 3 2009 AIR SCW 2984 4 AIR 1994 Andhra Pradesh 364 •i of desertion, but in his pleading the respondent has pleaded in detail that the appellant has committed cruelty as well as she has willfully deserted him which the appellant has denied and pleading. Learned counsel further submitted that this pleading of the respondent was well within the knowledge of the appellant, both the parties have led evidence and on the basis of evidence and pleadings, the Family Court has decided the petition, nothing was taken into surprise, therefore, any irregularity in making the pleadings or mentionin^ wrong provision will not affect the merits of the case unless prejudice has been caused to the opposite party. In the present case, the Family Court has decreed the suit oh the basis of pleadings as well as evidence suffident for drawing inference of cruelty committed by the appellant. 9. In order to appreciate the contentions and arguments adv^nced by the parties, we have examined the pleadings and evidence available on record. 10.As per the pleadings ofthe respondent, after marriage, the appellant was residing with the respondent till January 2002, thereafter, she left the house of the respondent and after long advise, she came to the house of the respondent on 29-6-2003 and again she went to Jabalpur on 31-3- 2004, thereafter, she did not come back to the house of the respondent andshe is residing separately from 31-3-2004. The respondent has tried his level best to reconcile the matter, even he had tried to take the help of Police Consultation Centre, but the appellant did not appear before the said Centre and the respondent has filed petition under Section 9 of the Act for restitution of conjugal rights where the appellant has specifically 1 stated that she is not ready to live with the respondent. These altegations have been specifically denied by the appellant in her detailed pleading and the appellant has alleged that the respondent is in the habit of committing cruelty and torture upon her. 11.0n close scrutiny of the pleadings of the respondent, it is clear that the respondent has claimed dissolution of marriage by a decree of divorce on the ground of willful desertion by the appellant since 31-3-2004, but the respondent has not pleaded or claimed dissolution of marriage by a decree of divorce on the ground of cruelty. Pleadings of the respondent have been specifically denied by theappellant in her written statement. 12.Both the parties have led evidence. The respondent himself has deposed on affidavit, he supported his pleadings and specifically deposed that repeatedly he requested the appellant to live with him, but she refused. In his detailedcross-examination he has supported the allegations made in the plaint. His witnesses Revaram Vishwakarma & Ganga Prasad Vishwakarma have also corroborated his statement. 13.0n the other hand, the appellant has deposed that she has never deserted the respondent, per contra, the respondent has committed cruelty upon him. Her statement has beeh supported by her witnesses Chhotelal Vishwakarma & Rajeev Sharma. 14.1n the present case, claim of dissolution of marriage by'a decree of divorce was based on the ground of willful desertion. Entire pleading and evidence of the respondent reveals that the respondent has neither pleaded any ground of cruelty nor proved any evidence, but the Family Court has not framed the issue relating to desertion and has framed issue on the ground of cruelty, and decreed the petition on the ground of cruelty. Clauses (ia) & (ib) of Section 13 (1) of the Act reads thus, I "13. Divorce.—(1)Any marriage solemnized, whether I before or after the commencement of this Act, may, on 1 i a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party— (ia) has, after the solemnization of the marriage, treated the petitioner with cruelty; or (ib) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation ofthe petition; or" 15.Both the above clauses (ia) & (ib) of Section 13 (1) of the Act are separate grounds. Clause (ia) relates to cruelty and clause (ib) relates to desertion. Although some times, long willful desertion may amount to cruelty, but long willful desertion itself is a ground for dissolution of marriage by a decree of divorce. The Judges of the Family Courts are experienced judicial officers and they are expected to decide the claim of the parties in accordance with the pleadings and law, after application of mind. But in this case, the 2nd Additional Principal Judge, Family Court, Durg has neither framed issues on the basis of pleadings nor decided the case on the basis of pleadings & evidence. 16.The parties are required to plead and prove the grounds available under Section 13 (1) of the Act. In absence of any pleading or evidence, we are unable to agree with the findings of the Family Court. The judgment & decree impugned are not sustainable under the law and they areliable to be set aside. 17.Consequently, the appeal is allowed. Judgment & decree dated 27-12- 2007 passed by the 2 Additional Principal Judge, Family Court, Durg in Civil Suit No.43A/2007 are hereby set aside. No order as to costs. 18.Advocate fees as per schedule. IQ.Decree be drawn up accordingly. Soma Sd/- T.P. Sharma Judge Sd/- R.L. Jhanwar Judge ^