MANJIT SINGH Vs. S KANWARJIT SINGH

JUDGEMENT

(1.) The orders passed on 2.12.1993 and 6.12.1993 byShri J.D. Kapoor, Additional District Judge, Delhi in Hindu Marriage Case No.181/90 are under challenge in this petition filed under Article 227 of the Constitutionof India at the behest of the wife who is a respondent in the petition for grant of adecree for divorce preferred by the husband, pending in the Court below.

(2.) On 26.2.1990 a petition for dissolution of marriage by a decree of divorceunder Section 13 of the Hindu Marriage Act, 1955 (Hereinafter referred to as 'theAct') was preferred by the husband on the ground that the wife after the solemnisation of marriage had voluntarily sexual intercourse with persons other than herspouse; that after solemnisation of marriage the wife treated the husband withcruelty; and that the wife has deserted the husband for a continuous period of notless than 2 years immediately preceding the date of presentation of the petition. On7.1.1991 the wife filed her reply. Replication thereto was filed by the husband on28.5.1991. On 29.7.1991 the following issues were framed:1. Whether this Court has no territorial jurisdiction? OPR2. Whether the petitioner was treated with cruelty by the respondent?OPP3. Whether the respondent had after the solemnisation of marriage volutarily sexual intercourse with persons other than her spouse, i.e., thepetitioner? If so, its effect. OPP4. Relief.The Presiding Officer while framing of issues recorded 'No other issue arises or isprayed'.

(3.) The husband opened his evidence on 1.12.1993. On 2.12.1993 the Courtobserved that there was some confusion about the issues framed on the basis of thepleadings. One of the issues framed was as regards the husband's allegation thatthe wife had voluntarily sexual intercourse after mariage with persons other thanher spouse. It amounted to taking up the ground of adultery. It was furtherobserved that irrespective of the allegations the stand taken by the husband wasthat he is not seeking dissolution of marriage on the ground of adultery but the actsalleged in the petition amounted to cruelty. In view of this the Court suo motureformulated the issues. The order passed on 2.12.1993 reads:"2.12.93P: Parties with Counsel.Since there is confusion about the issues framed on the basis of pleadings ofparties, as one of the issues framed was with regard to allegation made by thepetitioner of the respondent having voluntary intercourse after marriage withpersons other than her spouse i.e. the petitioner. Counsel for respondent contendsthat this issue tantamounts to ground of adultery, whereas the Counsel forpetitioner states that he is not seeking dissolution of marriage on the ground ofadultery but these acts amount to mental cruelty. In order to obviate the legalobjection as.well to make the position clear regarding the grounds for dissolutionof marriage, the issues are re-formulated as under:-