FA-272-1999 (HEMANT KUMAR Vs SMT.RAJDULARI) 17-11-2015 Shri Ashok Kumar Gupta, learned counsel for the appellant. None for the respondent. This appeal under Section 28 of the Hindu Marriage Act, 1955 (for short the Act) is directed against the judgment and decree dated 31/03/1999 passed by District Judge, Satna in Civil Suit No.92-A/1997 whereby dismissing the appellant's (husband's) petition seeking divorce from the respondent (wife) filed under Section 13(1)(ib) of the Act. Briefly stated, the appellant had filed a petition for divorce against the respondent on the ground of desertion enumerated under Section 13(1)(ib) of the Act. The said petition was opposed by the respondent. The trial Court after framing the issues and after recording evidence dismissed the petition. It is pertinent to mention that prior to filing of the said petition for divorce appellant had filed a petition under Section 9 of the Act for restitution of conjugal rights, which was numbered as Civil Suit No.37-A/1997, which was dismissed on 07/07/1997 as it was not pressed by the appellant. The case of the appellant was that as the respondent denied to live and cohabit with the appellant, the petition under Section 9 of the Act was not pressed by him. Be that as it may. The contention of the learned counsel for the appellant is that the trial Court had decided the petition without framing of appropriate issues and that the impugned judgment is based on misreading of the evidence and as such liable to be set aside. We have gone through the issues framed by the trial Court, which reads thus :-
1ण् क्या दिनांक 23.2.97 को प्रत्याथर्िनी की माॅ द्वाराप्रत्याथर्िनी को जबरन याचिकाकतर्ा के घर से अपने घरले जाया गया है, और तब से प्रत्याथर्िनी याचिकाकतर्ाके घर वापस नहीे आई है ?2. क्या विवाह के समय से ही दहेज की माॅंग करते हुए औरउसके असुन्दर होने के आधार पर याचिकाकतर्ा औरउसके माता पिता तथा भाई प्रत्याथर्िनी कोप्रताडित करते रहे हैं ?3. क्या दिनांक 23.2.97 को प्रत्याथर्िनी कोयाचिकाकतर्ा ने मारपीट कर और उसके समस्त कपडे औरजेबर छुडाकर अपने घर से वाहर निकाल दिया ?4. क्या प्रत्याथर्िनी याचिकाकतर्ा से लिखित जबाब कीकंडिका 2 में वणर्ित सम्पत्ति वापस पाने की अधिकारिणीहै ?5. क्या याचिकाकतर्ा दूसरा विवाह करने के लिये प्रयासरत था?6. सहायता एवं व्यय ? On going through the pleadings of the parties we find that the issues framed by the trial Court as above were not properly framed. We have also gone through the findings recorded by the trial Court for answering the aforementioned issues. The findings does not appear to be in consonance with the evidence, which was led by the parties. As regards the cruelty which has been alleged by the respondent against the appellant, in the absence of any clear evidence against the appellant findings about the cruelty which has been recorded by the trial Court, is not sustainable. The same is therefore, hereby set aside. As regards the finding that the petition has been filed before lapse of two years preceding from the date of desertion and therefore no decree under Section 13(1)(ib) can be passed, we find that though there is no specific issue about it, but from the face of pleadings and the evidence on record, it is clear that the petition was filed before lapse of two years from the alleged date of desertion. In the circumstances the finding to that effect cannot be said to be illegal. Therefore, the petition having been failed prematurely, the trial Court's finding to that effect is upheld. Learned counsel for the appellant at this stage prays that the appellant may be permitted to file a fresh petition for divorce and the trial Court may be directed to decide it in accordance with law on the ground of desertion under Section 13(1)(ib) of the Act or on any other ground as may be available to the appellant taking into consideration the period of desertion which has elapsed during this period. Having considered the aforesaid prayer without commenting upon the merits of the said prayer, we grant liberty to the appellant to file a fresh petition for divorce as aforesaid. In case such petition is filed by the appellant, the trial Court shall decide the same in accordance with law. The respondent will also be at liberty to contest such petition if filed and raise all the grounds as may be available to her. With the aforesaid observation and liberty the appeal is disposed of. C.c. as per rules. (Shantanu Kemkar) (R.S. Jha) JUDGE JUDGE