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Bench: JUSTICE H.N. Sarma


Law Point:
Such a person against whom allegation of adultery is made to be impleaded as party.





This appeal is directed against the judgment and order dated 16.9.2003 passed in T.S. (D) No. 06/03 by the learned District Judge.

2. Although the suit of the plaintiff/respondent was dismissed but the findings on the Issue No. 3 having been gone totally against the appellant/defendant, necessity arose for her to file this appeal.

3. I have heard Mr. D. Choudhury, learned Counsel for the appellant and Mr. D. M. Thakuria, learned Counsel appearing for the respondent/husband.

4. The respondent/husband instituted the aforesaid suit praying for a decree of divorce to dissolve the marriage between the parties. The pleaded case of the respondent/plaintiff is that he married appellant/defendant on 8.8.1998 at Village Bhadra according to Hindu rites but from the very beginning of the marriage they could not live a happy marital life due to ill behaviour of the defendant. At para 3 of the plaint it is pleaded as follows:

“3. That the cruel and untold harsh behaviour has reached zenith. When the petitioner got married for the 2nd time with the full consent of the Opposite party. It is submitted here that the opposite party has no issues and she is incapacitated to give birth to any child.”

Apart from the above pleadings it is also alleged in the plaint that the defendant is a woman of low ebb with degraded moral character and she leads a degraded life, that she developed an illegal relationship with one Ranjit Baishya and on 16.11.1999 she was caught red-handed. Again on 5.11.2002 at around 1.30 night one unknown person entered in her bed room and having heard the sounds of such entrance in the bed room of the defendant, the plaintiff saw that a person fled away from her bed room and he could not be recognized by him. Accordingly, the plaintiff prayed for a decree of divorce on the aforesaid ground.

5. The defendant/appellant contested the suit by filing written statement denying the allegations made against her and prayed for dismissal of the suit. In the written statement it is pleaded that after lapse of three months of their marriage, the plaintiff brought one woman with three girls to their house and on being asked by the defendant about this the plaintiff replied that he had married that woman for the second time and on being protest by the defendant she was rebuked by the plaintiff and by hatching a plan to get rid of her life, has instituted the suit falsely.

6. On the basis of the pleadings of the parties, the learned trial Judge framed the following issues:

“(a) Whether the suit is bad for misjoinder of party Ranjit Baishya?

(b) Whether the plaintiff is entitled to decree of divorce on ground of adultery?

(c) Any other relief/reliefs the parties are entitled to ?”

7. During the course of hearing plaintiff examined four witnesses including himself and the defendant also examined four witnesses including herself. At the end of the trial, the learned trial Judge dismissed the suit but held that the defendant is not the legally married wife of the plaintiff and the marriage between the plaintiff and the defendant is not a valid one. Although no such specific issue was framed, this finding was rendered by the learned trial Judge in deciding the issue No. 3. Mr. Choudhury, learned Counsel for the appellant has not objected to the decision of the trial Judge in dismissing the suit but he has seriously objected to the finding rendered in Issue No. 3 holding that the appellant is the second wife of the respondent and she was married during the subsistence of the first marriage. In deciding the issue No. 1, the learned trial Judge also held that the suit is bad for misjoinder of the respondent No. 2. The respondent No. 2 was impleaded as a party alleging adultery against him with the defendant under Rule 8 of the Gauhati High Court Rules to Regulate the Procedure Under the Hindu Marriage Act, 1955 such a person against whom allegation of adultery is made, is to be impleaded as a party. Rule 8 is quoted below for ready reference:

“8. Necessary parties—(a) In every petition for divorce or judicial separation on the ground that the other spouse/respondent is living in adultery or has committed adultery with any person, after the solemnization of the marriage the petitioner shall make such adulteror or adulteress a co-respondent. The petitioner may however, apply to the Court by an application supported by affidavit for leave to dispense with the joinder of such person as a co-respondent on any of the following grounds—

(i) that the name of such person is unknown to the petitioner although he has made all efforts for discovery;

(ii) that such person is dead;

(iii) that the respondent being the wife is leading a life of a prostitute and that the petitioner knows of no person with whom adultery has been committed;

(iv) for any other sufficient reason that the Court may deem fit to consider.

(b) In every petition under Section 13(2)(i) of the Act the petitioner shall make ‘the other wife’ mentioned in that section a co-respondent.

(c) In every petition under Section 11 of the Act, the petitioner shall make the spouse alleged to be living at the time of the marriage as co-respondent if the relief is sought on contravention of Section 5(1) of the Act.”

8. It appears that neither the learned trial Judge was aware of the aforesaid provisions of law nor the learned Counsel appearing for the respective parties highlighted this position regarding the impleadment of the necessary parties in a suit for divorce alleging adultery. Such impleadment of defendant No. 2 is in consonance with the provision of law. Hence, the decision rendered in Issue No. 2 cannot be sustained.

9. Issue No. 3 which is the bone of contention as raised in this appeal relates as to whether the plaintiff is entitled to decree of divorce on the ground of adultery. Learned trial Judge has categorically held that “marriage between the parties was solemnized on 8.8.1998 at Village Bhadra as per Hindu rites and after the marriage both of them lived together as husband and wife for three months and thereafter the petitioner brought another woman with 3 girls and used to live separately with her in a house in the same compound and when the respondent No. 1 questioned the petitioner regarding the wife, he stated that he married the woman. But according to the plaintiff/petitioner he married the woman with full consent of the respondent No. 1 as the respondent No. 1 was unable to give birth to any issue”. Thereafter, the learned trial Judge proceeded to scrutiny the evidence of the parties more particularly that of the plaintiff. In his oral evidence the plaintiff has given a complete new story rather a diametrically opposite story having obvious consequence in the decision of the suit. In the evidence the plaintiff/respondent stated inter alia that he married the defendant on 8.8.1998 as per Hindu rites and she is the second wife. He also stated that he married the defendant for the second time to get a male child and earlier he married one Debajani Talukdar in the year 1998 and he has got three daughters from the side of the first wife.

10. In cross-examination of the plaintiff it was revealed that he married for the second time with full consent of the defendant, Smt. Putuli Das. He denied the suggestion that all the problems arose when Debajani, his 2nd wife entered with her three daughters into his house. On the basis of the aforesaid stand taken by the plaintiff during hearing, the learned trial Judge held that at the marriage of defendant with the plaintiff/respondent, was during the continuance of his first marriage with Debajani and hence the marriage is void under Section 5(1) of the Hindu Marriage Act and accordingly the learned Judge held that there was no legal marriage between the parties. Since Section 13 of the Hindu Marriage Act provides for decree of divorce between the husband and wife who was legally married and in the instant case there being no such legally valid marriage, Section 13 of the Act is not attracted and consequently the suit was dismissed. Mr. Choudhury submits that although the suit was dismissed but the aforesaid findings has adversely affected the status of the appellant as wife of the plaintiff/respondent and she having no other available remedy has filed this appeal, challenging the said findings on the issue No. 3.

11. Mr. Thakuria, however, submits that it is the pleaded case of the plaintiff/respondent that the plaintiff married on 8.8.1998 but due to incapacity to produce any child, he married for the second time with the full consent of the defendant and the aforesaid stand has been later on shifted at the time of giving evidence.

12. A plaint is the basis of the claim of the plaintiff. Averments made in the plaint are required to be proved by legal evidence. The pleadings are the foundations and the said foundations are not to be given up at later stage and the plaintiff is not permitted to set out and propound a new case subsequently. The plaintiff must stand on its own legs. No amount of evidence can be looked into upon the plea which is not pleaded (see AIR 1930 PC 57 and AIR 1942 PC 64).The decision of a case could not be based on the ground not pleaded in the pleading (see AIR 1953 SC 235, Messrs Trojan & Co. v. R.M.N.N. Nagappa Chettiar). A plaintiff cannot be permitted to propound a new case at the hearing stage and that is what has been done in the instant case. This is one of the fundamental and basic principles in deciding civil suit and the learned District Judge failed to take note of this proposition of law, thereby causing grave injustice to the appellant. That apart, there is no discussion at all regarding alleged adultery raised by the plaintiff/husband.

13. In view of the above discussion, the decision on Issue No. 3 cannot be sustained and the decision and observations made in deciding the issue No. 3 by the learned trial Judge stands set aside and quashed. The matter is remanded back to the learned District Judge for deciding the aforesaid issue No. 3 afresh after giving opportunity to the parties on the basis of available materials. Both the parties have agreed to appear before the learned trial Judge on 19.2.2008 on which date the learned trial Judge shall fix the date of hearing.

14. The appeal stands allowed to the extent as indicated above with cost of Rs. 2,000 in favour of the appellant and the said cost shall be deposited before the learned trial Judge by the respondent/plaintiff.

15. The Registry is directed to transmit the record forthwith.

Appeal allowed.

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