ASISH KUMAR DAS Vs. KAKALI DAS

JUDGEMENT

(1.) By this application, the applicant-husband has prayed for review of the judgment and decree passed by the Division Bench of this Court in FAT No. 002 of 2003. The principle ground taken in this application, is that the real important issue in the case involved has not been decided by the Court and that the Court came to a finding on an issue which was not framed.

(2.) The husband-applicant filed a suit for divorce against the respondent-wife under section 13((1)(ia) and (ib) of the Hindu Marriage Act, 1955 mainly on the ground of discretion and cruelty. The marriage took place on 12.12.1995 according to the Hindu rites and customs and a male child was born in the wedlock. The applicant-husband is a medical officer and the respondent is a school mistress at Port Blair. The specific allegations of the husband is that from the very beginning, the respondent showed her disliking to live in the matrimonial home with the parents-in-law and was persistently creating pressure upon the plaintiff to live in a house separately from his parents which was not acceptable to the husband. It is also alleged that the respondent-wife deserted the husband on 1.6.1996, after which a suit for restitution of conjugal right was filed by the husband. The wife filed a written statement denying the allegations made in the plaint. Thereafter in course of conciliation proceeding, the wife denied to come back to the matrimonial home and the husband denied to take back the wife for the allegations given against him. Subsequently, the husband withdrew the suit for restitution of conjugal right and filed a suit for judicial separation. In that suit, the wife filed an additional written statement assassinating the character of the husband. Of course, the said additional written statement was not pressed subsequently. But in view of the allegations given, the husband filed a petition for amendment of the plaint and it was allowed and was confirmed by the High Curt. The matter went up to the Supreme Court. But the amendment of the plaint was not interfered. The wife accordingly, filed an additional written statement. The suit for judicial separation after the amendment was converted into a suit for divorce by way of an alternative prayer. The wife filed an application under Order 7 Rule 2 of the Code of Civil Procedure for rejection of the plaint but it was rejected by the High Court and the said order was confirmed when it was challenged in revision. It is to be mentioned that initially the matrimonial suit was heard by the trial Court in which the question of maintainability of the suit being issue No. 1 was decided in the negative and the suit was dismissed. Against that decision, the husband preferred an appeal before this Court and the appeal was allowed with the observation that the suit was maintainable. So, the suit was sent back on remand for disposal of the same on merits.

(3.) In course of rehearing of the suit, the following issues were framed were by the trial Court: Issues 1. Is the case maintainable in the present form and in face and on law? 2. Did the respondent treat the petitioner with cruelty? 3. Has the respondent deserted the petitioner, or has she been driven out of the matrimonial home by the petitioner under threat?