[1] This appeal under Section 100 of the Civil Procedure Code is at the instance of the original opponent against whom respondent – original applicant filed Hindu Marriage Petition No.7/2007 seeking divorce under Section 13 of the Hindu Marriage Act [for short “the Act”].
[2] The case of the applicant in his petition is that the marriage of the applicant with the opponent – wife was solemnized on 25.01.1996 as per the Hindu Rites. It is averred in the application that the applicant had come to Mehsana after completing his study of S.Y.B.Com in 1994 and joined the office of the father of the opponent, who was running Gas Agency in the name and style of “Suvidha Gas Agency” in Mehsana. As further stated in the application, after about two years, the father of the opponent made proposal to him for marriage of his daughter with the applicant, to which the applicant agreed and started residing as son of the father of the opponent in the house of the opponent. It is further case of the applicant that the opponent was suffering from skin diseases which the opponent did not disclose at the time of her marriage and since it turned out to be psoriases arthritis it became impossible for the applicant to live with the opponent as husband and wife in the matrimonial home. Therefore, the applicant left Mehsana and started residing in his home town. The applicant has further stated that because of ailment suffered by the opponent which could not be cured in spite of long treatment taken by her, it was not possible to carry on the matrimonial life any longer with the opponent and, therefore the applicant has filed the application for divorce.
[3] The application was resisted by the opponent denying all the allegations made in the application and stating that the opponent was under treatment of family doctor to get cured the skin disease. She stated in the reply that she was not suffering from any skin disease at the time of marriage and it was not correct that she had not disclosed any skin disease to the applicant. She, thus, opposed the application and requested not to grant divorce as prayed for by the applicant.
[4] Learned Trial Judge, on appreciation of evidence, came to the conclusion that the opponent was suffering from such disease which was not curable and it became impossible for the applicant to carry on his matrimonial life with the opponent. Learned Trial Judge, thus, allowed the application and granted divorce to the applicant under Section 13 of the Act by judgment and decree dated 11.08.2011.
[4.1] The opponent – wife unsuccessfully carried the matter before the First Appellate Court by filing Regular Civil Appeal No.41/2011. As could be found from the judgment of the learned Appellate Judge, the learned Appellate Judge, without deciding the core issue involved in the appeal, dismissed the appeal by judgment and decree dated 8.5.2012 on totally a different point which had not at all arisen from the pleadings of the parties and which was not available to the applicant under the provision of Section 13 of the Act. The opponent has, thus, come in this appeal under Section 100 of the Civil Procedure Code challenging the judgment and decree passed by the learned Appellate Judge.
[5] This Court vide order dated 26.11.2012 issued notice and granted ad-interim stay against the execution, implementation and operation of the judgment and decree passed by the Courts below.
[6] In response to the notice issued by this Court, learned advocate Mr.Yogendra Thakore has appeared for the respondent.
[7] After going through the judgment and decree passed by the learned Appellate Judge, when the Court was of the view that the present appeal could be disposed of on limited ground, learned advocates for the parties fairly consented to take up the appeal for final disposal. This appeal was admitted on the following substantial question of law.
“Whether the first Appellate Court could be said to have discharged its function under Section 28 r/w. Order 41 of the Civil Procedure Code in accordance with law ?”
Learned advocate Mr.Yogendra Thakore, waives service of notice of admission on behalf of the respondent. With the consent of learned advocates for the parties, the appeal is finally heard.
[8] When this Court, from the judgment of the learned Appellate Judge drew the attention of the learned advocate for the respondent that the learned Appellate Judge except recording the contents of the application of the applicant and taking note of the statements made by the witnesses in the depositions, has neither focused on the issues nor has appreciated any evidence available on record, learned advocate Mr.Yogendra Thakore fairly stated that if this Court is of the opinion that the appeal is not decided on the merits, this Court may remand the matter with direction to the learned Appellate Judge to decide and dispose of the appeal on merits and on the issues involved in the appeal on the basis of appreciation of evidence available on record.
[9] Learned advocate Mr.Pratik Barot for the appellant has stated before the Court that he would have no objection if such course is adopted by the Court. He, however, pointed out that the learned Appellate Judge has dismissed the appeal on the additional point of irretrievable break down of marriage of the parties which was not at all at issue and not even available to the applicant under the provision of Section 13 of the Act in view of the latest decision of the Hon’ble Supreme Court. He, thus, requests to quash and set aside the judgment and decree passed by the learned Appellate Judge and to direct the learned Appellate Judge to decide the appeal of the appellant only on the basis of the issues arising from the pleadings and in the context of evidence available on record.
[10] In view of the above and since this Court finds that the learned Appellate Judge has not decided any of the issues involved in the case in the context of evidence available on record, the matter requires to be remanded to the learned Appellate Judge to decide the appeal afresh after giving an opportunity to the parties. The appeal is, therefore, required to be allowed on the above stated substantial question of law framed by this Court.
[11] In the result, the appeal is partly allowed. The judgment and decree passed by the learned Appellate Judge is quashed and set aside. The matter is remanded to the First Appellate Court to decide the appeal afresh on the issues involved in the case on the basis of the evidence available on record. The Appellate Court shall hear and decide the appeal finally within a period of six months from today. It is made clear that this Court has not gone into merits of the matter and it is for the Appellate Court to decide the appeal on its own merits and in accordance with law.
[12] In view of the disposal of the Second Appeal, the Civil Application does not survive and hence, the same stands disposed of.
(C.L.SONI, J.)
vijay