Hon'ble ARORA, J. - (1.) THIS appeal is directed against the decree and judgment dated 6. 1. 93, passed by the Judge, Family Court, Udaipur, by which the learned Judge of the Family Court allowed the application under Section 13 of the Hindu Marriage Act filed by the petitioner-respondent and passed the decree of divorce ordering for the dissolution of the marriage between Prakash Chandra Jain and Smt. Chandrawati Jain.
(2.) PRAKASH Chandra Jain, on 8-12-87, filed an application under Section 13 of the Hindu Marriage Act in the Court of the District Judge, Udaipur, for the dissolution of the marriage and the grant of decree of divorce on the grounds that (i) after the soleminization of the marriage he has been cruelly treated by the wife, she levelled false allegations against him regarding the demand of dowry, got it published in the news papers and circulated it amongst the relatives and the public at large; and (ii) Smt. Chandrawati (the wife) has deserted him for a continuous period of not less than two years immediately preceding the filing of the petition under Section 13 of the Act. The petitioner for divorce, filed by PRAKASH Chandra Jain, was opposed by Smt. Chandrawati and she filed reply to the petition on 15. 12. 88. In the reply, she denied all the allegations made in the petition for divorce and further submitted that she never left the house of the petitioner out of her own sweet will but she, alongwith her son, was left by the petitioner himself, on 15/9/1985, at the residence of her father and thereafter he did not take any care either of his son or her and she was time and again tortured and the demands for dowry in the shape of wrist watch, gold-chain, Sofa-set, almirah etc. were made by the husband and his family members. After the establishment of the Family Court at Udaipur, the case was transferred to the Court of the learned Judge of the Family Court, Udaipur. On the basis of the pleadings of the parties, the following issues were framed : ...[Vernacular Text Ommited]... The petitioner (husband), in support of his case, examined himself as AW 1 and, also, got examined Kanhaiya Lal AW 2, Bheru Lal AW 3, Navneet Lal AW 4, Sudhir AW 5 and Shanti Lal AW 6. The non-petitioner (wife) Smt. Chandrawati, in support of her case, examined herself as NAW 1 and got examined Ram Singh NAW 2, PRAKASH Jain NAW3, Man Shanker NAW 4 and Smt. Vidhyawati NAW 5. The learned Judge of the Family Court, after trial, by its decree and judgment dated 6. 1. 93, passed the decree of divorce in favour of petitioner PRAKASH Chandra and ordered for the dissolution of the marriage between the parties. While decreeing the suit filed by PRAKASH Chandra Jain, the learned Judge of the Family Court held that the petitioner has been able to prove that he has been treated with cruelty by the wife and he has, also, been deserted by the wife for a continuous period of not less than two years immediately preceding the presentation of the petition. It is against this decree and judgment dated 6. 1. 93, passed by the learned Judge of the Family Court that the appellant (non-petitioner) has preferred this appeal. It is contended by the learned counsel for the appellant that neither the cruelty nor desertion has been proved by the petitioner-husband and the learned trial Court was not justified in decreeing the suit on the basis of the cruelty and desertion. According to the learned counsel for the appellant, for proving the case of cruelty it has to be established that the conduct of the non-petitioner, Which is inflicted upon the other party such mental pain and suffering, has made it not possible for that party to live with the other party and the mental Cruelty must be of such a nature that the party cannot reasonably be expected to live together and for proving the desertion the petitioner has to prove (i) the factum of separation; and (ii) the intention to bring the cohabitation permanently to an end. The further two elements are, also, essential to be proved for the deserted spouse is concerned and they are (i) the absence of consent; and (ii) absence of conduct giving reasonable cause to the spouse leaving matrimonial home to form the necessary intention of separation. In support of its contention, learned counsel for the appellant has placed reliance over V. Bhagat vs. D. Bhagat (Mrs.) Bipin Chandra Jai Siknghbhai Shah vs. Prabhavati, Lachman Utam Chand Kriplani vs. Meena alias Mota, Parihar (Priti) vs. Parihar (Kailash Singh ). It has, also, been contended by the learned counsel for the appellant that the proper issues regarding the desertion and cruelty were not framed by the learned trial Court and the case proceeded-on without the proper framing of the issues, which has prejudiced the defence of the appellant. It has further been submitted that both the grounds, namely, cruelty and desertion, cannot go together and the decree of dissolution of the marriage on both these grounds cannot be passed. It has, also been contended by the learned counsel for the appellant that the respondent petitioner in the original petition Prakash Chandra Jain filed the petition for judicial separation on 16/1/1986 on the same grounds which he got dismissed on 30/7/1987 for non-prosecution and, therefore, the petition for dissolution of marriage on the same grounds filed by the petitioner on 8/12/1987, is not maintainable under Or.2 R. 2 as well as under Or. 23 R. 1 C. P. C. and by the dismissal of the petition for restitution of conjugal rights, which was based on the same grounds which have been taken in the present petition for dissolution of the marriage, the petition has condoned the conduct of the appellant prior to 15/1/1987. In support of this contention, learned counsel for the appellant has placed reliance over Dr. N. G. Dastane vs. Mrs. S. Dastane and Smt. Anandi Devi vs. Raja Ram. The learned counsel for the respondent-husband, on the other hand, has supported the decree and judgment passed by the learned Judge of the Family Court and has submitted that the petitioner, by the cogent evidence produced by him, has proved the case of desertion as well as the cruelty and the decree passed by the learned trial Court does not require any interference. It has further been submitted by the learned counsel for the respondent that the proper issues were framed and even if there is a defect in framing the issues, both the parties were fully knowing the controversy in dispute, they led their evidence and argued the matter on merit before the learned trial Court without raising any objection regarding non-framing of any specific issue and no prejudice has been caused to the appellant and, therefore, the decree and the judgment cannot be set-aside on the ground that proper issues were not framed. Learned counsel for the respondent-husband further submitted that the question of condonation or the maintainability of the petition was neither pleaded nor taken up by the appellant (non-petitioner) in the trial Court. In order a raise plea under O. 2 R. 2 and/or O. 23 R. l C. P. C. , it was necessary for the appellant to have specifically pleaded and raise such plea and to produce the evidence to show that the second petition, filed by the petitioner-husband, was based on the same cause of action. Similar is the case with respect to the condonation of the acts, which must, also, have been pleaded and proved by the cogent evidence. In support of his contention, learned counsel for the respondent has placed reliance over Gurbux Singh vs. Bhoora (7), Bhagwan Dutt and Another vs. S. Rajeev Singh and Another (8), Smt. Saroj Rani vs. Sudarshan Kumar Chadha (9), Devi Singh vs. Smt. Sushila Devi (10), Dr. K. C. Sitaroria vs. Smt. Sarla Sitaroria (11), Anil Kumar Chopra vs. Indira Devi (12) and Sangappa Sadappa Bhavari vs. Gourawa (13 ). We have considered the submissions made by the learned counsel for the parties. Before considering the arguments advanced by the learned counsel for the parties on merit of the case ; whether the desertion and cruelty have been established from the evidence produced by the petitioner-husband, we would first like to see : whether the issues framed by the learned trial Court were proper and whether by not framing the proper issues, any prejudice has been caused to the respective party in meeting-out the case set-up by the petitioner and to lead evidence in this regard. Order 14 rule 1 C. P. C. casts a duty upon the trial Court that at the first hearing of the suit, after reading the plaint and the written statement, if any, to ascertain upon what material proposition of fact or law, the parties are at variance and shall thereupon frame and record the issues on which the right decision of the case appear to depend. In the present case, the petitioner, in his petition under Section 13 of the Hindu Marriage Act, made allegations against the wife that she had deserted him and has, also, treated him with cruelty. It was, also, stated in para No. 13 of the petition that earlier, also, he filed a petition for restitution of conjugal rights against Chandrawati on 16. 1. 1986 but he did not appear on 30. 7. 1987 to prosecute that petition and got, it dismissed for non-prosecution. These allegations relating to cruelty and desertion were denied by Smt. Chandrawati in her reply. The parties were at variance on both these issues but still the learned trial Court did not frame the specific issues and instead framed issue No. l whether on the basis of the allegations made in para No. 2 a to 13, the petitioner is entitled to get the decree of divorce. The parties are not represented by the Advocates in the Family Court and the Family Court, Udaipur, was, therefore, expected to itself look-up the interest of both the parties and frame the proper issues so that the parties may know what case they have actually to meet. From the pleadings of the parties, the controversy, which emerges, is, whether the wife has deserted the husband for two years immediately preceding the presentation of the petition and committed the cruelty towards the husband and, therefore, the learned trial Court was expected to have framed the proper issues on these points and should have decided the same after giving full opportunity to the parties to adduce evidence. The trial Court has not properly framed the issues regarding the cruelty and desertion which has prejudiced the case of the parties. The decree and judgment, passed by the learned trial Court, therefore, deserve to be quashed and set-aside and the case is remanded to the trial Court to frame the proper issues and decide them afresh after giving proper opportunity to the parties to lead their evidence in this regard. The parties will be at liberty to raise any other grounds including the grounds regarding the maintainability of the petition or condonation of the previous acts, if they so like, by amending their respective pleadings.
(3.) IT is not necessary to decide other grounds' raised by the learned counsel for the parties since the decree and judgment, passed by the learned trial Court, have been set-aside. Decision on merit on these issues will prejudice the case of the parties during the trial. In the result, the appeal, filed by appellant-wife (non petitioner) is allowed. The decree and judgment dated 6/1/1993, passed by the learned Judge of the Family Court, Udaipur, decreeing the suit filed by the petitioner-respondent for dissolution of the marriage between Prakash Chandra Jain and Smt. Chandrawati Jain, is set-aside and the case is remanded to the learned trial Court for deciding it afresh after framing the proper and definite issues and giving opportunity to the respective parties to produce their evidence.;