- (1.) The order of the District Judge, Chandigarh now under appeal besides being impugned on merits is also challenged on the ground that the learned judge failed to frame the necessary issues which arose from the pleadings of the patties and instead put the parties on trial on an issue which did not arise from those pleadings and, thus, there has been no fair trial. From a bare perusal of the impugned order and the pleadings of the parties I find that the above noted objection of the learned counsel for the appellant is well merited.
(2.) The case of the petitioner husband (Now respondent) was that he had obtained a decree under section 9 of the Hindu Marriage Act, 1955 (for short, the Act) against the appellant on 19th February, 1972 and that decree having remained unsatisfied, as the parties never resumed cohabitation, he was entitled to a decree of divorce under section 13(1-A)(ii). As against this it was pleaded on behalf of the appellant that the said decree under section 9 of the Act besides being an ex parte decree was fraudulent. It was also pleaded that the parties were living as husband and wife and have been cohabiting as such right upto the end of 1975, i. c., for more than 3 years after obtaining of the decree under section 9 of the Act. Instead of putting the parties on trial on the basis of these pleadings, the learned lower court framed an issue as if the petitioner was seeking divorce on the ground of desertion, i.e. under section 13 (1)(i-b) of the Act. This is so very clear from the following observations in the impugned order : "On merits the following issues were framed : 1. Whether the respondent deserted the petitioner for a period of more than one year prior to the filing of the present petition ? 2. Relief. No other issue was framed as the ground under section 13 (1-A)(ii) was admitted in the written statement that there was no resumption of cohabitation between the parties after passing of the decree for restitution of conjugal rights." The observation that in the written statement it had been accepted that there was no resumption of cohabitation between the parties after the passing of the decree for restitution of conjugal rights" is totally against the record. No such admission has been made in the written statement filed on behalf of the appellant. It appears that the solitary issue on which the parties were put on trial was framed without' noticing the contents of the pleadings of the parties. While disposing of the above noted issue on merits, the learned judge instead of recording any finding as to whether there had been desertion on the part of the appellant wife for more than two years, as envisaged by clause (i-b) of section (1) of section 13 of the Act, has recorded a finding that the petitioner husband was entitled 60 the decree prayed for in the light of the provisions of section 13(1-A)(ii) of the Act.
(3.) In the light of above factual position I am fully satisfied that there has been no proper or fair trial and the appellant has been completely misled in the matter of producing her evidence in support of her pleas I, therefore, set aside the judgment and decree under appeal and send the case back to the District Judge, Chandigarh. for retrial after framing proper issues. The parties through their counsel are directed to appear before him on 5th September, 1983.;