Full Judgment
A.R. Tiwari, J.
1. This appeal preferred under Section 28 of the Hindu Marriage Act is directed against the judgment and decree dated 11th December, 1989 rendered by Vth Judge to the Court of District Judge, Indore in Hindu Marriage Case No. 6/86, thereby dismissing the application seeking relief of dissolution of marriage by decree of divorce on the ground of cruelty and desertion.
2. Briefly stated, the facts of the case are that the marriage between the parties was solemnized in May, 78 at village Bhaurasa, District Dewas according to Hindu rites. One daughter Amrita is born from this wedlock. Parties are living separately since 14-1-1983. The appellant urged that the respondent was guilty of cruelty. She did not discharge her obligations. She even threatened that she would commit suicide. The respondent also deserted the matrimonial home and left the house without any reasonable cause. On these allegations, the husband claimed the decree of divorce. The respondent resisted the claim. She emphatically denied the allegation of desertion on 14-1-83 and also controverted the allegations as regards the cruelty. On the other hand, she pleaded that she was being harassed on the ground of bringing less dowry and was subjected to physical and mental torture. She was denied even food and clothes. On these averments, the respondent pleaded that petition of divorce deserved to be dismissed. On evaluation of evidence, the Trial Court found the allegations of cruelty and desertion as unproved. The Trial Court therefore, dismissed the petition. Aggrieved by the judgment and decree, the appellant has filed this appeal and renewed the prayer for decree of divorce.
3. I have heard Shri Brijesh Pandya learned Counsel for the appellant and Shri M.D. Sinha learned Counsel for the respondent and have perused the record.
4. The appellant has amended the application in this Court through an application under Order 6, Rule 17 of the Code of Civil Procedure. Through the amended application, the appellant has urged that the respondent made unauthorised and unfounded allegations in the written statement and these allegations themselves constituted the ground of cruelty and formed the basis of decree of divorce. In pursuit of this contention, the learned Counsel for the appellant placed reliance on AIR 1987 Bom. 220 (Jaishree Mohan v. Mohan).
5. Shri Sinha learned Counsel for the respondent, on the other hand submitted that no issue was framed by the Trial Court on this part of contention and as such no fair trial of this matter was done. He, therefore, claimed an opportunity of being heard on this matter.
6. In the light of the amendment made in the application, I deem it just and proper to set aside the impugned judgment and decree and remit the matter to the Trial Court in terms of Order 41, Rule 23-A of the Code holding that the retrial is necessary in the light of the additional plea incorporated in the application. Accordingly re-trial is considered necessary. The respondent shall have liberty to seek consequential amendment in the written statement of defence on obtaining leave from the Court. The Trial Court shall frame appropriate issue on the basis of amended pleading and shall afford reasonable opportunity to the parties to lead the evidence in respect of their rival contentions on this additional issue. The finding recorded on issue Nos. 1 and 2 is set aside and fresh findings shall be rendered after consideration of the entire evidence on the additional issue as well. The judgment and decree are set aside.
7. The Trial Court is, thus, directed to re-admit the application and proceed to determine the same in accordance with law after giving a reasonable opportunity to the parties. The appeal is accordingly allowed.
8. The evidence recorded during original trial shall be evidence during trial after remand.
9. Parties shall appear in the Trial Court on 30th August, 1993 to take further orders in the matter. The Trial Court is also directed to dispose of the case within a period of 4 months, from 30-8-93. Parties are also directed to co-operate in expeditious disposal in matrimonial matter. Parties are left to bear their own costs of this appeal as incurred. Let decree be drawn up.
10. The record of the Court below shall be returned immediately so as to reach the Trial Court well in advance before the date fixed for appearance of the parties.