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PATNA HIGH COURT
Dinesh Kumar Singh and Arvind Srivastava, JJ.
Arvind Kumar Singh – Appellant
versus
Kiran Devi – Respondent
Miscellaneous Appeal No.525 of 2013
Decided on 25.9.2020
(A) Hindu Marriage Act, 1955 – Section 13 – Divorce – Adultery and cruelty by wife – If there is delay in disposal of matrimonial suit or appeal, that cannot be a ground for dissolution of marriage – Alleged adulterer happens to be brother-in-law of respondent but he has not been made party – Adulterer is a necessary party when dissolution of marriage or judicial separation is sought on ground of adultery – To constitute cruelty, conduct complained of should be grave and weighty which compels petitioner not to live with other spouse – Physical cruelty can be established by direct evidence but it is difficult to establish mental cruelty by direct evidence – Merely because allegations and counter allegations have been levelled, decree of divorce cannot follow – Appellant has only examined himself and has not produced any other witness – If there is delay in disposal of matrimonial suit or appeal, that cannot be a ground for dissolution of marriage – In plaint there was no pleading for dissolution of marriage on ground of irretrievable breakdown – Matrimonial case was filed after nine years of marriage – No infirmity in judgment and decree impugned – Miscellaneous Appeal dismissed. (Paras 13, 15 to 18, 20 to 24)
(B) Civil Procedure Code, 1908 – Order VI Rule 1 – Pleadings – Relief to be granted can be only with reference to prayer made in pleadings – Cause of action for a suit should be comprising of all facts which plaintiff must aver and if traversed, prove to support his right to judgment – Court cannot make out a third case contrary to pleadings and evidence on record – If there is no pleading, then no relief can be granted on that basis – Third ground cannot be taken by party in Court which has neither been pleaded nor proved.
Held: Moreover, if there is delay in disposal of the matrimonial suit or appeal, that cannot be a ground for dissolution of marriage.
Above all, it is the fundamental principle of civil law that relief to be granted can be only with reference to the prayer made in the pleadings, as has been held by the Hon’ble Supreme Court in the case of Bachhaj Nahar Vs. Nilima Mandal and Anr., (2008) 17 SCC 491. Paragraph 23 of the judgment reads as follows:
“23. It is fundamental that in a civil suit, relief to be granted can be only with reference to the prayers made in the pleadings. That apart, in civil suits, grant of relief is circumscribed by various factors like court fee, limitation, parties to the suits, as also grounds barring relief, like res judicata, estoppel, acquiescence, non-joinder of causes of action or parties, etc., which require pleading and proof. Therefore, it would be hazardous to hold that in a civil suit whatever be the relief that is prayed, the court can on examination of facts grant any relief as it thinks fit. In a suit for recovery of rupees one lakh, the court cannot grant a decree for rupees ten lakhs. In a suit for recovery possession of property ‘A’, court cannot grant possession of property ‘B’. In a suit praying for permanent injunction, court cannot grant a relief of declaration or possession. The jurisdiction to grant relief in a civil suit necessarily depends on the pleadings, prayer, court fee paid, evidence let in, etc.” (Paras 18 and 19)
Result: Miscellaneous Appeal dismissed.
JUDGMENT (ORAL)
Dinesh Kumar Singh, J.—Heard learned counsels for the appellant, respondent.
2. The present Miscellaneous Appeal is directed against the judgment and decree dated 16.3.2009 and 31.3.2009, respectively, passed by the learned Principal Judge, Family Court, Patna in Matrimonial Case No. 460 of 2007/59 of 2000, whereby the matrimonial suit filed by the appellant with a prayer for decree of divorce on dissolution of marriage between the appellant and the respondent on the ground of adultery and cruelty, has been dismissed with cost of Rs.5000/-.
3. It appears that the judgment and decree of the learned Principal Judge, Family Court was initially challenged in First Appeal No. 57 of 2009. The learned counsel for the appellant was permitted to convert the First Appeal into Miscellaneous Appeal vide order dated 1.7.2013 and consequently, it was numbered as Miscellaneous Appeal No. 525 of 2013. The Miscellaneous Appeal was dismissed by a bench of this Court vide order dated 13.5.2015 with a direction to make payment of 1/3rd pension of appellant husband to the respondent wife.
4. Subsequently, vide order dated 14.9.2015 passed in Civil Review No. 164 of 2015, the same bench recalled the judgment dated 13.5.2015 and restored the Miscellaneous Appeal. Relevant part of the order dated 14.9.2015 reads as follows:
“Having condoned the delay in filing review petition, we take up the review application for admission, having considered the grounds taken in support of the review application we recall our judgment dated 13.05.2015 passed in M.A. No. 525 of 2013, restore the said appeal for hearing before appropriate Bench, which should be considered in accordance with law without being prejudiced by our judgment dated 13.05.2015.
Review Application is, accordingly, disposed of.”
5. The factual matrix of the case is that the appellant husband was married with the respondent wife on 10.5.1998 according to Hindu rites and rituals. The relationship was not very compatible and the appellant husband preferred Matrimonial Case No. 400 of 2007 for dissolution of marriage on the ground that on 30.5.1998 the respondent returned to her parents’ house along with her jewellery and other belongings. She had illicit relationship with her brother in law Ashok Kumar Singh, as the appellant had himself witnessed the respondent wife with said Ashok Kumar Sigh in compromising position. The respondent wife used to threaten the appellant. The respondent did not allow the appellant to cohabit. She also lodged false cases against the appellant.
6. The respondent wife entered appearance and filed her written statement denying the allegations levelled by the appellant husband. The case of the respondent wife is that the appellant is in relationship with one Sandhya Devi and on the instigation of said Sandhya Devi, the appellant used to make further dowry demands. The respondent wife filed several criminal cases against the appellant husband with allegation of torture being inflicted on her and in retaliation to the same, the matrimonial case was filed by the appellant just to harass the respondent wife.
7. In the matrimonial case, following issues were framed:
“(1) Is the suit as framed is maintainable?
(2) Is the suit barred by law of limitation?
(3) Has the respondent committed adultery with her brother-in-law after her marriage with the petitioner?
(4) Has the respondent deserted the plaintiff?
(5) Has the respondent treated the petitioner with cruelty?
(6) Is the petitioner entitled for a decree of divorce?
(7) To what other relief or reliefs, if any, the petitioner is entitled?”
8. The appellant only examined himself as P.W. 1 and produced certain documentary evidence including the criminal cases filed by the respondent wife. The respondent wife examined two witnesses – herself as D.W. 1 and Rajeshwar Singh as D.W. 2. She also exhibited certain documentary evidence including the certified copies of the FIR. Considering the materials
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