PRABHAKAR NARAYAN PADALKAR Vs. SHASHIKALABAI @ INDUBAI

JUDGEMENT

(1.) The appellant-husband has filed this First Appeal against the decree of judicial separation passed by the learned 2nd Extra Assistant Judge, Aurangabad in his favour. The learned Extra Assistant Judge has granted decree of judicial separation and partly allowed the petition filed by the appellant-husband. No order of costs was passed. This judgment and decree was recorded by the learned Extra Assistant Judge on 25th March 1982 in Marriage petition No. 187 of 1980.

(2.) The husband challenges this decree on the ground that the learned Extra Assistant Judge was in error in refusing the relief of divorce. It was contended by the appellant-husband before me that the finding made by the learned Extra Assistant Judge on Issue No. I is manifestly erroneous. The learned Extra Assistant Judge has found that desertion is proved, but he has stated that it is not at the instance of the Respondent-wife. In his judgment, the learned Extra Assistant Judge observes in para 22 as follows :

(3.) 1 am afraid, that this view of the learned Extra Assistant Judge is not supported by record. It is well settled that the evidence cannot be looked into on the issues or on the points which are not made the points of defence or points of attack in the pleading. Kindly see AIR 1931 PC 309 Raghunandan Vs. Ramsunder and AIR 1930 PC 57 (1) Siddik Makemod Shah Vs. Mr. Saran ). In the present case, the respondent has never stated in her written statement that she was ilitreated and taken to Buldhana hospital under the guise of treatment for T.B. In the absence of any pleading on this point, it was erroneous on the part of the learned Extra Assistant Judge to have accepted this case of the respondent.