The importance of pleadings as the foundation of a claim and the necessity of evidence aligning with the pleadings.

H.N. Sarma, J.

1. This appeal is directed against the judgment and order dated 16-9-2003 passed in T.S. (D) No. 06/03 by the learned District Judge.

2. Although the suit of the plaintiff/respondent was dismissed but the findings on the Issue No. 3 having been gone totally against the appellant/defendant, necessity arose for her to file this appeal.

3. I have heard Mr. D. Choudhury, learned Counsel for the appellant and Mr. D.M. Thakuria, learned Counsel appearing for the respondent/husband.

4. The respondent/husband instituted the aforesaid suit praying for a decree of divorce to dissolve the marriage between the parties. The pleaded case of the respondent/plaintiff is that he married appellant/defendant on 8-8-98 at Village Bhadra according to Hindu Rites but from the very beginning of the marriage they could not live a happy marital life due to ill behaviour of the defendant. At para 3 of the plaint it is pleaded as follows:

3) That the cruel and untold harsh behaviour has reached zenith. When the petitioner got married for the 2nd time with the full consent of the opposite party. It is submitted here that the opposite has no issues and she is incapacitated to give birth to any child.

Apart from the above pleadings it is also alleged in the plaint that the defendant is a woman of low ebb with degraded morale character and she leads a degraded life, that she developed an illegal relationship with one Ranjit Baishya and on 16-11-1999 she was caught red handed. Again on 5-11-2002 at around 1.30 night one unknown person entered in her bed room and having heard the sounds of such entrance in the bed room of the defendant, the plaintiff saw that a person fled away from her bed room and he could not be recognized by him. Accordingly, the plaintiff prayed for a decree of divorce on the aforesaid ground.

5. The defendant/appellant contested the suit by filing written statement denying the allegations made against her and prayed for dismissal of the suit. In the written statement it is pleaded that after lapse of three months of their marriage, the plaintiff brought one woman with three girls to their house and on being asked by the defendant about this the plaintiff replied that he had married that woman for the second time and on being protest by the defendant she was rebuked by the plaintiff and by hatching a plan to get rid of from her life, has instituted the suit falsely.

6. On the basis of the pleadings of the parties, the learned trial Judge framed the following issues:

A Whether the suit is bad for misjoinder of party Ranjit Baishya?

B. Whether the plaintiff is entitled to decree of divorce on ground of adultery?

C. Any other relief/reliefs the parties are entitled to?

7. During the course of hearing plaintiff examined four witnesses including herself and the defendant also examined four witnesses including herself. At the end of the trial, the learned trial Judge dismissed the suit but held that the defendant is not the legally married wife of the plaintiff and the marriage between the plaintiff and the defendant is not a valid one. Although no such specific issue was framed, this finding was rendered by the learned trial Judge in deciding the issue No. 3. Mr. Choudhury, learned Counsel for the appellant has not objected to the decision of the trial Judge in dismissing the suit but he has seriously objected to the finding rendered in Issue No. 3 holding that the appellant is the second wife of the respondent and she was married during the subsistence of the first marriage. In deciding the issue No. 1, the learned trial Judge also held that the suit is bad for misjoinder of the respondent No. 2. The respondent No. 2 was impleaded as a party alleging adultery against him with the defendant under Rule 8 of the Gauhati High Court Rules To Regulate The Procedure Under The Hindu Marriage Act, 1955 such a person against whom allegation of adultery is made, is to be impleaded as a party. Rule 8 is quoted below for ready reference:

8. Ne