IN THE HIGH COURT OF UTTARAKHAND

AT NAINITAL

First Appeal No. 20 of 2012

Smt. Sukesh

…...Appellant

Versus

Sandeep Kumar

…… Respondent.

Present:

Mr. P.K. Chauhan, Advocate for the appellant.

Mr. Mohd. Safdar, Advocate for the respondent.

Reserved Judgment

JUDGMENT

Coram: Hon’ble Rajiv Sharma, J.

Hon’ble Sharad Kumar Sharma, J.

Dated: 21^st August, 2017

Per Hon’ble Sharad Kumar Sharma, J.

This is a wife’s appeal challenging the judgment dated

23^rd January, 2012, passed by the Family Court in Suit No.

246 of 2011, Sandeep Kumar Vs. Smt. Sukesh, whereby, the

learned Family Court, while deciding the issues, had decreed

the suit and has dissolved the marriage by the impugned

judgment dated 23^rd January, 2012.

In the appeal, the appellant’s contention, while

challenging the decree, is that the Family Court had not

considered the facts and circumstances of the case and

without considering the fact of establishment of cruelty or

desertion, normally, the marriage between the husband and

wife ought not to be dissolved. It is the case of the wife that

once, the husband seeks a dissolution of marriage on the

ground of cruelty, desertion and un-chastity, apart from the

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fact that he has to discharge his burden of proof as un-

chastity is a serious allegation against a lady, for which, the

person claiming a lady to be un-chaste, has to establish by

evidence.

Under the C.P.C., Section 21 C.P.C. has been made

applicable which automatically attracts provision of Order

14, which requires that when parties to the suit have

exchanged their pleadings either denying or accepting the

respective cases, there has to be a conclusion arrived at as to

which is material preposition of fact of law affirmed by one

party and denied by other. Under Sub-rule 5 of Rule 1 of

Order 14, it is the responsibility casted on the Court dealing

with the suit that after reading of plaint or written statement,

to ascertain as to what preposition of facts and law is at

variance and thereafter, it should decide as to what issues

are required to be settled between the parties to the dispute.

Under Section 13 of the Hindu Marriage Act, there are

various grounds on which the proceedings for dissolution of

marriage could be resorted to, i.e. cruelty, desertion,

impotency, adultery, etc. Foundation for dissolution of

marriage on any of the grounds provided under Section 13

requires an independent set of evidence and until and unless

the Court frames an appropriate issue in relation to the

points of variance and proceeds to decide the case, it would

amount to as if the parties to the case have not been

provided an adequate opportunity to establish and lead their

case in the absence of framing of an appropriate issue.

There have been a long stretch of pleadings between

the parties and the learned Trial Court framed the following

issues :-

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“1- D;k ;kfpdk esa fn;s x;s vk/kkjksa ij mHk; i{kksa ds e/; gq,

fookg dks foPNsfnr fd;k tk ldrk gS rFkk fookg foPNsn dh fMxzh ikfjr

dh tk ldrh gS \

2- ;kph dh ;kfpdk ds fl} gksus ij D;k vuqrks’k iznku fd;k tk

ldrk gS \”

The issues, thus, framed are not specific and on its

simple reading, it cannot be said that it relates to which of

the grounds available for seeking dissolution of marriage

under Section 13 of the Hindu Marriage Act. If this be so, it

is the violation of the provision contained under Order 14

C.P.C. read with Section 21 of the Hindu Marriage Act.

Since, the learned Trial Court has not framed an

appropriate specific issues for deciding the controversy, and

the action assailed, if it covers various aspects of Section 13,

then independent issues were required to be framed by the

Court below. Having not done so, has rendered the

judgment impugned, to be vague as non framing of an

appropriate issue would amount to not providing an

appropriate opportunity to the pa