ORDER :

1. The appellant is aggrieved of the judgment dated 06th December 2017 passed in Matrimonial Suit No. 57 of 2015 (in short, the Divorce Suit) which was instituted by her husband for a decree of divorce on the ground of “cruelty” and “desertion.”

2. By the aforesaid judgment, the Divorce Suit has been decreed on contest.

3. In our opinion, the judgment in Divorce Suit is flawed for more than one reason.

4. The Family Court in the judgment dated 6th December 2017 has framed the following issues:

(I) Is the suit, as framed, is maintainable?

(II) Whether the applicant has valid cause of action?

(III) Whether the respondent has committed cruelty and has deserted the applicant?

(IV) Whether the applicant is entitled to a decree of divorce on the ground of cruelty and desertion?

(V) To what other relief or reliefs, the applicant is entitled to?

5. A glance at the issue no. III; whether the respondent has committed cruelty and has deserted the applicant - reveals that a composite issue on the grounds of cruelty and desertion has been framed by the Family Court. Under section 13(1)(i-a) of the Hindu Marriage Act, 1955 (in short, HM Act) cruelty is a ground for divorce. Whereas, section 13(1)(i-b) of the HM Act which provides that if a spouse has been deserted for a continuous period of two years immediately preceding the presentation of the petition the other spouse can seek decree of divorce by proving “desertion” is a separate and distinct ground for divorce. As cruelty and desertion are separate grounds for divorce under section 13 of the HM Act, there should have been separate issues framed for both grounds. For the same reason, the issue no. IV which is a consequential issue having direct connection with issue no. III is also defective.

6. Framing of issues is a very important stage in the civil litigation and it is the bounden duty of the Court that due care, caution, diligence and attention must be bestowed by the Presiding Judge while framing the issues [Refer: Ramrameshwari Devi vs. Nirmala Devi, (2011) 8 SCC 249]. Because the decision of the civil litigation largely depends upon the correct framing of issues, on the importance of framing correct issues, in Makhan Lal Bangal vs. Manas Bhunia, (2001) 2 SCC 652 the Hon'ble Supreme Court has held thus:

“19........The real dispute between the parties is determined, the area of conflict is narrowed and the concave mirror held by the court reflecting the pleadings of the parties pinpoints into issues, the disputes on which the two sides differ. The correct decision of civil lis largely depends on correct framing of issues, correctly determining the real points in controversy which need to be decided. The scheme of Order 14 of the Code of Civil Procedure dealing with settlement of issues shows that an issue arises when a material proposition of fact or law is affirmed by one party and denied by the other. Each material proposition affirmed by one party and denied by other should form the subject of a distinct issue. An obligation is cast on the court to read the plaint/petition and the written statement/counter, if any, and then determine with the assistance of the learned counsel for the parties, the material propositions of fact or of law on which the parties are at variance. The issues shall be framed and recorded on which the decision of the case shall depend. The parties and their counsel are bound to assist the court in the process of framing of issues. Duty of the counsel does not belittle the primary obligation cast on the court. It is for the Presiding Judge to exert himself so as to frame sufficiently expressive issues. An omission to frame proper issues may be a ground for remanding the case for retrial subject to prejudice having been shown to have resulted by the omission......”

7. Notwithstanding that, the aforesaid defects in framing of issues could have been ignored had there been proper consideration of the issues arising in the suit.

8. The Principal Judge, Family Court,