SANTOSH ANAND Vs. ANAND PRAKASH

JUDGEMENT

(1.) These two appeals, the first one by the wife and the other by the husband arise from the order of the court of the District Judge, Dehradun, dated 16th August, 1978, allowing the husband's appeal before him from the ex parte decree dated 28th October, 1977 passed by the court of the Civil Judge, Dehradun, on the wife's petition for divorce under Section 13 of the Hindu Marriage Act.

(2.) The wife had claimed dissolution of the marriage by a decree of divorce on the ground of cruelty against the husband. In the petition itself she had claimed a decree directing the Respondents to return the goods belonging to her, as specified in the Schedule to the petition, as also for the custody of the child. The husband had filed his written statement denying the Petitioner's allegations. After the failure of an attempt to bring about reconciliation between the parties, the trial court framed the issues whether the Respondent has treated the Petitioner with cruelty, and to what relief the Petitioner was entitled against the Respondent. The husband absented himself at the final hearing. The Petitioner filed an affidavit in support of the allegations made by her, and the trial court allowed the petition in the following terms:

(3.) Before the lower appellate court it was urged on behalf of the husband that the separate proceedings should have been taken for the claims for the return of the goods and the custody of the child. The lower appellate court held that it was not necessary to do so in view of Sections 26 and 27 of the Hindu Marriage Act. However, it accepted the further contention raised on behalf of the husband that the only issue raised between the parties was with regard to cruelty which was referable to the claim for dissolution of the marriage and since no issue was pressed on behalf of the wife with regard to the other two claims for return of the goods and the custody of the child, he did not consider it worthwhile to appear at the trial; but the wife's claim for the return of the goods and the custody of the child having been denied by the husband in his written statement, no decree could have been passed in respect of them, at any rate not without trying the matter after formulating the points in issue between the patties with regard thereto. The lower appellate court accordingly allowed the appeal and set aside the direction contained in the decree with regard to the return to the movable property and custody of the child and remanded these two matters for fresh trial after framing proper issues and giving the parties an opportunity to lead the evidence thereon.