THE HON’BLE SRI JUSTICE RAMESH RANGANATHAN AND THE HON’BLE SRI JUSTICE M. SATYANARAYANA MURTHY C.M.A.No.165 of 2005 ORDER (Per the Hon’ble Sri Justice M. Satyanarayana Murthy) The unsuccessful petitioner preferred this appeal against the dismissal order passed by the Senior Civil Judge, Chirala, in HMOP No.15 of 2003 dated 24.01.2005.
The petitioner filed the petition under Section 13(1)(ia) of Hindu Marriage Act, 1955 (for short ‘the Act’) claiming decree of divorce alleging that the marriage between the petitioner and the respondent was performed as per Hindu rites and customs and they lived at Kankatapalem Village. In July, 1995, the petitioner secured employment as Teacher and worked at Kunkalamarru Village, Karamchedu Mandal. Thereafter, there were differences between the petitioner and the respondent, and as they were not blessed with any children, the petitioner and the respondent underwent fertility test and the doctor, after perusing the test reports, opined that the respondent will not conceive and since then, the respondent made the petitioner to suffer mentally. Thus, the petitioner was subjected to cruelty by the respondent due to the infertility problem. On that sole ground, the petitioner sought for divorce.
The respondent filed counter denying the averments and while admitting the marriage between the petitioner and the respondent, she specifically contended that the doctor’s opinion is that the petitioner is not in a position to procreate children and therefore, the alleged cruelty is not true and prayed to dismiss the petition.
The Senior Civil Judge instead of framing the point on the issue of cruelty, framed the following points;
1. Whether the petitioner is able to prove ‘desertion’ by respondent without reasonable cause?
2. Whether is the petitioner entitled for dissolution of marriage by decree of divorce?
3. To what relief ?
The trial Court went on discussing point Nos.1 and 2 together and ultimately concluded that the petitioner is not able to establish desertion by the respondent and dismissed the petition.
Learned counsel for the petitioner/appellant mainly contended that the petitioner never sought divorce on the ground of desertion under Section 13(1)(ib) of the Act, but claimed divorce only under Section 13(1)(ia) of the Act. He further contended that in spite of framing an appropriate issue under Section 13(1)(ia) of the Act, the trial Court framed an issue, which is not relevant for deciding the real dispute and therefore, the judgment is unsustainable.
After perusal of the judgment, it is clear that the petitioner never sought divorce on the ground of desertion, but sought divorce on the ground of cruelty. Hence, the trial Court recorded a finding without any plea and evidence with regard to desertion. Further, the trial Court did not frame appropriate issue or point for consideration but decided the matter beyond the pleadings. In such circumstances, this Court can exercise its power under Section 41 Rule 23A and Rule 33 of CPC to set aside the order and remand the matter to the trial Court, when the order of the trial Court is illegal and contrary to the provisions of CPC and the same is liable to be set aside.
In the result, the order under challenge passed in HMOP No.15 of 2003 dated 24.01.2005 is hereby set aside remanding the matter to the trial Court with a direction to restore the petition to its original number in OP register, after hearing both counsel, frame appropriate issue or point for consideration, afford reasonable opportunity to the parties and pass appropriate orders in accordance with law.
The Civil Miscellaneous Appeal is disposed of accordingly. There shall be no order as to costs. Miscellaneous petition, if any, pending in this appeal shall stand closed.
RAMESH RANGANATHAN, J M. SATYANARAYANA MURTHY, J 10th December, 2014 sj