Deoki Nandan, J. - (1.) THIS is a plaintiffs first appeal from an order of the Court of the District Judge, Rampur, allowing the respondents' appeal from a decree for restitution of conjugal rights in the plaintiff's favour and remanding the suit for a fresh trial. The factum of the marriage was admitted. The first respondent, who is the wife, pleaded that she was less than 15 years of age at the time of the marriage on the 26th May, 1975, and the marriage having been settled by her mother, defendant -respondent No. 2, she repudiated it in exercise of her option of puberty. The plaintiff's case that the marriage had been consummated or that she had excused the payment of prompt dower was denied and it was pleaded that after the marriage the first defendant -respondent continued to live at her mother's place and since the plaintiff used to ask for money from the first defendant -respondent's mother and used to threaten them, she repudiated the marriage in exercise of her option of puberty.
(2.) IT is not necessary for the purposes of disposal of this appeal to go into further details of the pleadings. It is sufficient to say that the parties went to trial on the following issues: 1. Whether the defendant No. 1 has been kept aloof from the society of plaintiff without any reasonable and probable cause? 2. Whether the defendant No. 1 has exercised her right of repudiation after attaining puberty? If so its effect? Whether the plaintiff is entitled to any other relief? 3. The trial Court found in the course of consideration of issue No. 2, which it took up first, that the marriage had been consummated; that there was no reliable evidence to show the date of birth or the correct age of the first defendant -respondent at the time of marriage, but went on to hold that in its opinion, the defendant was proved to have been 18 years of age at the time of marriage, and that the dissolution of the marriage by the first defendant -respondent, in exercise of her option of puberty, was not proved in accordance with law. The trial Court then went on to consider the effect of the fact that the right to have a marriage dissolved in exercise of option of puberty, was made a statutory right under Clause (vii) of Section 2 of the Dissolution of Muslim Marriages Act, 1939, and held that it was necessary for the first defendant -respondent to have obtained a decree for dissolution of her marriage in exercise of the option of puberty if that was so and the first defendant not having done so, the marriage contracted between the parties on the 26th May, 1975 continued to subsist in law. In the result, the trial Court answered issue No, 2 in favour of the plaintiff and against the defendants. On issue No. 1, the trial Court found that the first defendant -respondent was living at her parents' place without any reasonable excuse and also answered that issue in the plaintiff's favour. On issue No. 3 the trial Court found that the plaintiff was entitled to restitution of conjugal rights and decreed the suit.
(3.) THE first defendant appealed to the District Court from that decree. The learned District Judge observed that it was the plaintiff's allegation that dower was fixed at Rs. 10,000/ -, but the first defendant had "relinquished it as an act of her pleasure," that the first defendant had disputed this allegation and that it was a duty of the plaintiff to establish it, but not a word was said by him in evidence about "the dower debt having been relinquished." According to the lower appellate Court, the plaintiff was, in that view, not entitled to get a decree of restitution of conjugal rights. The complaint before the lower appellate Court appears to have been that proper issues were not framed in the case, and that there was no proper trial. The lower appellate Court proceeded to observe that it was as much the plaintiff's duty to have a proper issue framed on the question of relinquishment of dower and lead evidence, that assuming for the sake of argument the marriage had been consummated and the option of puberty had not been exercised the unconditional decree in favour of the plaintiff is legally unsustainable, "and that the proper thing for the trial Court was," to frame specific and clear issues on material points and not frame a vague and general issue and cover several points of law and fact therein. According to the lower appellate Court, "it would have been much better had the learned trial Court framed and tried clear issues on the point of puberty, exercise of option of puberty as also on the disputed question of relinquishment of dower debt." The lower appellate Court then proceeded to observe that, "it is true that evidence on the point of age and consummation was led and these issues have been contested but as already noted so far as the question of relinquishment of dower debt is concerned, which was such a crucial question in the matter of grant of decree of restitution of conjugal rights, neither a word of evidence was led nor a finding was recorded and yet the decree in favour of plaintiff was granted." It further appears that a document was admitted by the lower appellate Court for proving that the date of birth of the first defendant was 1st July, 1970 and that, therefore, she was less than 15 years of age at the time of marriage. On that, the lower appellate Court thought that both the parties should be allowed an opportunity to lead further evidence.;