G.C. De, J.
1. By this application, the applicant-husband has prayed for review of the judgment and decree passed by the Division Bench of this Court in FAT No. 002 of 2003. The principle ground taken in this application, is that the real important issue in the case involved has not been decided by the Court and that the Court came to a finding on an issue which was not framed.
2. The husband-applicant filed a suit for divorce against the respondent-wife under section 13((1)(ia) and (ib) of the Hindu Marriage Act, 1955 mainly on the ground of discretion and cruelty. The marriage took place on 12.12.1995 according to the Hindu rites and customs and a male child was born in the wedlock. The applicant-husband is a medical officer and the respondent is a school mistress at Port Blair. The specific allegations of the husband is that from the very beginning, the respondent showed her disliking to live in the matrimonial home with the parents-in-law and was persistently creating pressure upon the plaintiff to live in a house separately from his parents which was not acceptable to the husband. It is also alleged that the respondent-wife deserted the husband on 1.6.1996, after which a suit for restitution of conjugal right was filed by the husband. The wife filed a written statement denying the allegations made in the plaint. Thereafter in course of conciliation proceeding, the wife denied to come back to the matrimonial home and the husband denied to take back the wife for the allegations given against him. Subsequently, the husband withdrew the suit for restitution of conjugal right and filed a suit for judicial separation. In that suit, the wife filed an additional written statement assassinating the character of the husband. Of course, the said additional written statement was not pressed subsequently. But in view of the allegations given, the husband filed a petition for amendment of the plaint and it was allowed and was confirmed by the High Curt. The matter went up to the Supreme Court. But the amendment of the plaint was not interfered. The wife accordingly, filed an additional written statement. The suit for judicial separation after the amendment was converted into a suit for divorce by way of an alternative prayer. The wife filed an application under Order 7 Rule 2 of the Code of Civil Procedure for rejection of the plaint but it was rejected by the High Court and the said order was confirmed when it was challenged in revision. It is to be mentioned that initially the matrimonial suit was heard by the trial Court in which the question of maintainability of the suit being issue No. 1 was decided in the negative and the suit was dismissed. Against that decision, the husband preferred an appeal before this Court and the appeal was allowed with the observation that the suit was maintainable. So, the suit was sent back on remand for disposal of the same on merits.
3. In course of rehearing of the suit, the following issues were framed were by the trial Court:
ISSUES
1. Is the case maintainable in the present form and in face and on law?
2. Did the respondent treat the petitioner with cruelty?
3. Has the respondent deserted the petitioner, or has she been driven out of the matrimonial home by the petitioner under threat?
4. Is the petitioner entitled to get a decree for judicial separation prayed for?
5. To what other relief, if any, is the petitioner entitled.
ADDITIONAL ISSUES
6. Has the defendant committed any act of cruelty by alleged character assassination of the plaintiff?
7. Has the defendant made the plaintiff in any matter to suffer mentally by reason of any sort of cruelty?
8. Is the plaintiff entitled to get a decree for divorce on the ground of cruelty?
4. After considering the evidence adduced by the parties, it was concluded that the husband was entitled to get the decree for divorce mainly on the ground that he was treated with mental cruelty. In the said judgment, the issue No. 3 on the point of desertion was decided in negative. So, the trial Court came to the conclusion that cruelty perpetrated on the husband having been proved, the husband was entitled to get a decree for divorce and accordingly by the judgment and decree dated 21.2.2003, the said suit was decreed and the marriage relationship between the parties directed to be dissolved with effect from the date of the decree.
5. Against the said order of dismissal of suit, the wife-respondent filed an appeal being FAT No. 2 of 2003 and after a full-fledged hearing, the Division Bench of this Court by a judgment dated 28.5.2003 allowed the appeal mainly on the ground that the husband condoned the alleged cruelty of the wife by filing a suit for restitution of conjugal right and that the husband provoked the wife to assassinate the character of the husband, though such allegations were all baseless allegations.
6. The learned counsel appearing for the present applicant-husband contended that the Court did not consider at all the issue as to whether mere filing of restitution petition is an act of condonation of cruelty, nor any attempt was made to decide as to whether the subsequent pleading of character assassination of the husband revived the earlier allegations of cruelty by the wife. It was also not considered as to whether the wife's willingness to go to live with the husband is a feigning posture in order to defeat the husband's claim for divorce. The learned counsel for the applicant also pointed that even though there was no case of provocation is made out in the pleadings and no evidence was given on that issue after framing of an issue, the Court erred in law in deciding that issue of provocation. So, the learned counsel placing reliance and referring to para 34 on the decision of the Apex Court in Moran Mar Basselios Chatholicos and Anr. v. Most Rev. Mr. Poulose Athanasius and Ors. reported in AIR 1954 SC 526, contended that when the judgment did not effectively deal with and decide the important issue in the case which defends the title of the plaintiff and maintainability of the suit then this is certainly an error apparent on the face of the record. It is clarified that in the present case, this Court did not deal with an decide the important issue as to whether the previous acts of cruelty revived when false character assassination again made in the pleadings and evidence.
7. Reliance was also placed in paragraph 39 of the said decision in support of the contention that when the Court decides against a party on matters which do not come with the issues on which parties went on trial clearly amounts to an error apparent on the face of record. The learned counsel for the applicant argued that wife's case is that cruelty was out of provocation but as it is already argued there was no pleadings, no evidence, no argument at any stage of the suit that false character assassination was out of provocation. The learned counsel also pointed out the cross-examination part of the evidence of the wife in support of this contention. So, the learned counsel contended that in view of such circumstances, the judgment is required to be reviewed.
8. The learned counsel for the applicant also placed reliance on another decision reported in ILR 2000 A&N; Series 28 (The Lt. Governor and Ors. v. Smt Kulsum Bibi) in support of the contention that the questions in issue if remains undecided, it is a ground for review.
9. The learned counsel then argued that under the provisions of Section 23 of the Hindu Marriage Act, it is mandatory on the part of the Court to decide whether the acts of cruelty was condoned and if it is condoned, whether the previous acts of cruelty revived. It is argued that this Court at the time of passing of the judgment did not apply this provisions of enactment which on the face of it would apply to this case and non-application of this statutory provisions is not only a mistake but an error apparent on the face of record. In support of this contention, reliance is placed on a Division Bench judgment of this Court in Panchanan Bhowmick v. State of West Bengal reported in 1987(1) CHN 343. Reliance was also placed on this score in a judgment of the Apex Court reported in 1998 WBLR SC 192 (Balwinder Kaur v. Hardeep Singh). In these judgments, the view of the Curt is that under the provisions of Section 23 of the Hindu Marriage Act, it is mandatory on the part of the Court to satisfy itself before granting relief for divorce that acts of cruelty were condoned, and if condoned whether the previous acts of cruelty revived. In such case the cause of action for divorce on the ground of cruelty survives.
10. In this connection reliance was also placed on another decision of a Division Bench of the Calcutta High Court in the case of Smt. Krishna Sarbadhikary v. Alok Ranjan Sarbadhikary : AIR1985Cal431 in which the Court referring to the provisions of Mulla on Hindu. Law and some other decisions, took the view that earlier cruelty revives the matrimonial offence, if after the said condonation the act of cruelty are repeatedly committed thereafter.
11. The learned counsel also pointed out that the Court did not consider the deletion of Section 10(1)(b) and the insertion of the provision of 13(1)(a) in the Act by way of amendment. In : AIR1994SC710 (V. Bhagat v. D. Bhagat) the Apex Court analysed the entire situation on this aspect and for proper appreciation, we deem it proper to reproduce the paragraph 15 of the said judgment:
'15. The change of law brought about by the Hindu Marriage Law's Amendment) Act, 1976 deserves notice. Prior to the said Amendment Act, cruelty was not a ground for claiming divorce under the Hindu Marriage Act. It was a ground only for claiming judicial separation under Section 10. By the said Amendment Act, cruelty was made a ground for divorce as well evidently in recognition of the changing mores of the society. While doing so, it is significant, the words 'as to cause a reasonable apprehension in the mind of the petitioner that it will be harmful or injurious for the petitioner to live with the other party,' qualifying the expression 'cruelty' in Section 10(1)(b), were omitted by Parliament. It is, therefore, not necessary for the party claiming divorce to prove that the cruel treatment is of such a nature as to cause an apprehension a reasonable apprehension in his/her mind that it will be harmful or injurious for him/her to live with other party. Now what does this change mean? Surely, the deletion of the said words could not have been without a purpose. The cruelty of the nature described in Section 10(1)(b) has been explained in this Court's decision in Dastane v. Dastane, : [1975]3SCR967 . Chandrachud, J. speaking for the Bench, held that where an allegation of cruelty is made, the inquiry has to be 'whether the conduct charged as cruelty is of such a character as to cause in the mind of the petitioner a reasonable apprehension that it will be harmful or injurious from him to live with the respondent.' The learned Judge held further 'it is not necessary, as under the English law, that the cruelty must be of such a character as to cause 'danger' to life, limb or health or as to give rise to a reasonable apprehension of such a danger. Clearly, danger to life, limb or health or a reasonable apprehension of it is a higher requirement than a reasonable apprehension that it is harmful or injurious for one spouse to live with the other. But under Section 10(1)(b), harm or injury to health, reputation, the working career or the like, would be an important consideration in determining whether the conduct of the respondent amounts to cruelty. Plainly, what we must determine is not whether the petitioner has proved the charge of cruelty having regard to the principles of English law, but whether the petitioner proves that the respondent has treated him with such cruelty as to cause a reasonable apprehension in his mind that it will be harmful or injurious for him to live with the respondent.' This requirement is no longer present in Section 13(1)(ia).'
12. So, the learned counsel contended that this Court applied the law in terms of cruelty concept mentioned in Section 10(i)(b) of the Act prior to the amendment, but after the deletion of that section from the Act new concept of cruelty is introduced in Section 13(1)(ia) of the Act. So, it is argued that this Court committed an error in failing to apply the amended law in this case and this is to be treated as an error apparent on the face of record following the principles enunciated in 1987(1) CHN 343 (supra) and : (1995)1SCC58 (Commissioner of Sales Tax, J&K; and Ors. v. Pine Chemicals Ltd. and Ors.).
13. The learned counsel for the applicant thereafter placing reliance on several decisions of this Court and also of the Apex Court contended that false character assassination amounts to cruelty and the judgment against which the review is sought for having not considered this aspect and also the changed provision of law, it is an error apparent on the face of the record, for which a review is necessary.
14. The learned counsel appearing for the respondent-wife, however, placing reliance on the different portions of the judgment contended that the pre-litigation and post-litigation cruelty and condonation thereof were duly taken into consideration by the Court and as such there is no reason for review of the judgment. It is also argued that the provocation part is also discussed in the judgment and that was also duly taken care of. The learned counsel for the respondent further argued that the wife having expressed her desire to go back to the matrimonial home after regaining her confidence in the husband, the Court rightly took a decision in dismissing the suit. Finally, the learned counsel also contended that all the points raised by the petitioner and the respondent during the litigation right from the Court of the learned District Judge to the Division Bench of this Court were duly considered and that apart, there is no discovery of new facts justifying the review of the judgment. Accordingly, prayer was made dismissed of the review petition.
15. After having heard the learned counsel appearing for the respective parties and on perusal of the material on record, we are of the view that further hearing of the appeal is necessary for a just and proper decision after allowing this application for review, inasmuch as, an important issue as to whether the cruelty was condoned by the husband was not taken care of in the light of the change of law after the deletion of Section 10(1)(b) of the Act and insertion of Section 13(1)(ia) in the Act. We are also satisfied from the materials on records that the important issue as to revival of the earlier cruelty has not been considered in the judgment and this important aspect is required to be considered after a fresh hearing. Similarly, it is also necessary to hear the parties as to whether the question of provocation can be raised in this case without any pleading and evidence and without framing of an issue. We do not think that the points raised by the learned counsel for the petitioner are merely a mistaken approach in the judgment. In that event it can only to be settled and resolved by an Appellate Court. But the discussions made hereinabove, and the decisions referred to are sufficient to indicate that those are errors apparent on the face of record, for which review of the judgment is necessary.
16. It is also to be mentioned that this Court is not sitting over the judgment as an Appellate Court, and this Court, being the continuation of the earlier Division Bench within the meaning of the decision arrived at in the Five Judges Bench in WPCT No. 157 of 2001 (Shri K.N. Mishra v. Union of India and Ors.) is competent to entertain this review petition.
17. So, after due consideration, the application for review is allowed and the effect of such finding is to vacate the decree passed. Since the judgment and decree is vacated, the entire appeal is required to be heard on merits. Accordingly, the appeal be placed before the next Circuit Bench for fixing a date of hearing of the appeal.
The learned counsel for the appellant gives an undertaking that till the disposal of the appeal his client will not marry. Be that as it may, we deem it proper to pass an order that till the disposal of this appeal there shall be an interim stay of the judgment and decree passed by the trial Court.