Hon'ble Saurabh Lavania,J.
Heard Shri Dr. Sheelendra Kumar, learned counsel for the appellant and Shri Ram Prakash Singh, learned counsel for the respondent.
Facts in brief of the present case are that the marriage between the appellant/Amit Singh Rajpoot and respondent/Smt. Sarita Singh was solemnized on 08.12.2010 as per Hindu Rites and Rituals and thereafter, their matrimonial relations have become estranged.
The appellant filed a suit being No.461 of 2013 "Amit Singh vs. Sarita Singh" under Section 13 of Hindu Marriage Act, 1955 praying therein to pass the decree of divorce. In the said suit, appearance was put by the respondent but on later dates she did not turn up to contest the case. On 22.05.2018, the trial Court proceeded ex-parte and had directed the appellant to proceed in the matter. Thereafter, the appellant himself appeared to prove his case and produced the certified copy of petition no.23 of 2016 under Section 6 of Hindu Minority and Guardianship Act, 1956 as well as the certified copy of application under Section 50/65 of Metal Health Act, 1987.
By order dated 23.10.2018, learned Family Court, Gonda had allowed the suit ex-parte. The relevant portion of the same is being quoted herein below :-
" ???? ?????? ???????? ??? ??????? ????? ??? ?? ????? ?????? ???? ???? ?? | ???? ??? ??????????? ?? ???? ????? ????????? ? ???? ??????? ???? ???? ?? ?????? ????? ???? ???? ?? | ????? ???? ????????? ???? -???? ???? ???? ???? ??? ?? ??????, ?????? ?? ??? ????? ??? ?????? | ?????????? ?????? ????? ?? ???????? ????? ?????????? ?? |"
Assailing the judgment dated 23.10.2018 the learned counsel for the appellant submits that the learned court below in absence of pleadings and prayer for decree of judicial separation has granted the relief/decree of judicial separation, which is not permissible in law.
The learned counsel for respondent could not dispute the aforesaid.
After hearing learned counsel for the parties and going through the records, the admitted position is that in the suit filed by the appellant under Section 13 of Hindu Marriage Act, 1955, there is no pleading for judicial separation and the prayer made in the said suit are being quoted herein below :-
" (?) ?? ?? ?????? ????? ??????? ??????? ??????? ??????? ????? ?????? ?? ?????? ???? ???? ?? ??????? ???????? ???? ?? ????? ?????? ?? ???? ?? ???? ?? | (?) ?? ?? ???? ????? ???????? ?? ???????? ?? ?????? ??? ???? ?? ??????? ???????? ?????????/???????? ?????? ???? ??? | (?) ?? ?? ?????? ???????????? ??????? ?? ?????? ??????? ???????? ???????????/??????? ?????? ???? ??? | (?) ??? ???? ???? ?? ?????? ??? |"
Thus, once there is no pleadings in the suit filed by the appellant under Section 13 of Hindu Marriage Act for judicial separation and therein the appellant has also not sought the prayer for judicial separation, then the Court cannot grant the same.
"In Messrs. Trojan & Co. v. RM.N.N. Nagappa Chettiar AIR 1953 SC 235, this Court considered the issue as to whether relief not asked for by a party could be granted and that too without having proper pleadings. The Court held as under:
"It is well settled that the decision of a case cannot be based on grounds outside the pleadings of the parties and it is the case pleaded that has to be found. Without an amendment of the plaint, the Court was not entitled to grant the relief not asked for and no prayer was ever made to amend the plaint so as to incorporate in it an alternative case."
A similar view has been re-iterated by this Court in Krishna Priya Ganguly etc. v. University of Lucknow & Ors. etc. AIR 1984 SC 186; and Om Prakash & Ors. v. Ram Kumar & Ors., AIR 1991 SC 409, observing that a party cannot be granted a relief which is not claimed.
Dealing with the same issue, this Court in Bharat Amratlal Kothari v. Dosukhan Samadkhan Sindhi & Ors., AIR 2010 SC 475 held:
"Though the Court has very wide discretion in granting relief, the court, however, cannot, ignoring and keeping aside the norms and principles governing grant of relief, grant a relief not even prayed for by the petitioner."
In Fertilizer Corporation of India Ltd. & Anr. v. Sarat Chandra Rath & Ors., AIR 1996 SC 2744, this Court held that "the High Court ought not to have granted reliefs to the respondents which had not even prayed for."
Accordingly, the appeal is allowed and the impugned order dated 23.10.2018 passed by Additional District and Sessions Judge/Family Court/F.T.C. (New), Gonda is set aside. The matter is remanded back to the trial Court to decide the Suit No.461 of 2013 "Amit Sing Rajput vs. Sarita Singh" under Section 13 of Hindu Marriage Act, 1955 in accordance with law after providing an opportunity to the parties, expeditiously.
No order as to costs.
.
(Saurabh Lavania,J.) (Anil Kumar,J.) Order Date :- 26.7.2019 Mahesh