Court: Chhattisgarh High Court
Bench: JUSTICE Sunil Kumar Sinha & R.N. Chandrakar
Subhash @ Prakash Vs. Priyanka Subhash Dewangan On 02 July 2013
Law Point:
Hindu Marriage Act, 1955 — Sections 13(1)(ia), 13(1)(ib) — Family Courts Act, 1984 — Sections 10, 17 — Cruelty — Desertion — Improper Inquiry — Family Court has only taken for determination ground of desertion and ground of cruelty not taken by Family Court — No opportunity granted to appellant-husband to cross-examine 3 witnesses of respondent-wife who has filed their affidavits in support of pleadings of respondent — Proper inquiry not conducted by Family Court to settle dispute between parties — Impugned judgment passed without considering all grounds raised by parties — Impugned judgment and decree passed by Family Court set aside.
JUDGEMENT
Being aggrieved with the judgment and decree dated 31st of March, 2010 passed in Civil Suit No. 1-A/2008 by the Family Court, Raigarh, District Raigarh, C.G., the plaintiff has filed this appeal. By the impugned judgment, the suit filed under Section 13 of the Hindu Marriage Act, 1955 has been dismissed by the Family Court.
2. The appellant/plaintiff (husband) filed a suit under Section 13 of the Hindu Marriage Act, 1955 for a decree of divorce. Precisely there were allegations of cruelty against the respondent (wife) and also that she had deserted him since long back so as to give rise to a cause of action to file above civil suit.
3. Respondent (wife) filed her written statement denying the allegations made in the plaint. She also raised plea regarding her ill-treatment by the appellant and further regarding harassment on account of demand of dowry. She also pleaded that a criminal complaint in this regard was lodged by her.
4. It appears from the record that thereafter the issues were not framed and the learned Judge of Family Court called upon the parties to adduce their evidence by filing affidavits under Order XVIII, Rule 4 of the Code of Civil Procedure.
5. The plaintiff filed affidavits of 4 witnesses namely — Subhash @ Prakash (AW-1) — (plaintiff himself), Balram (AW-2), Bridhiram (AW-3) and Satyanand (AW-4). The defendant also filed affidavits of herself as NAW-1, Pardashi (NAW-2) and Smt. Radha Bai (NAW-3). The proceedings of 13.5.2009 would show that the defendant had expressed that she was not willing to cross-examine the witnesses of the plaintiff, however, it does not appear on record that the plaintiff was also granted opportunity to cross-examine the witnesses of the defendant or that the plaintiff had expressed that he also does not want to cross-examine those witnesses. Even no such endorsement in the affidavits or the deposition sheet is there on record.
6. The learned Judge, Family Court, thereafter, fixed the matter for final hearing, heard both the parties and passed the impugned judgment dismissing the suit.
Hence this appeal.
7. Mr. T.R. Dahire, Counsel appearing on behalf of the appellant/plaintiff, has argued that the learned Judge, Family Court committed gross illegality by not framing issues; even the points raised in the judgment for determination were not properly framed; that apart, the appellant was not granted opportunity to cross-examine the witnesses of the respondent/defendant, therefore, the judgment and decree cannot be sustained.
8. Having heard Counsel for the appellant, we have perused the records of the Family Court.
9. The first question is, “Whether it was mandatory for the Family Court to frame issues”?
10. Section 10 of the Family Courts Act, 1984 (hereinafter referred to as ‘the Act or Act, 1984’) is titled as ‘Procedure generally’. Sub-section (1) of Section 10 provides that subject to the other provisions of this Act and the rules, the provisions of the Code of Civil Procedure, 1908 (5 of 1908) and of any other law for the time being in force shall apply to the suits and proceedings other than the proceedings under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974) before a Family, Court and for the purposes of the said provisions of the Code, a Family Court shall be deemed to be a Civil Court and shall have all the powers of such Court. Further Clause (e) of Section 2 defines that unless the context otherwise requires, all other words and expressions used but not defined in this Act and defined in the Code of Civil Procedure, 1908 (5 of 1908) shall have the meanings respectively assigned to them in that Code. Section 11 to Section 16 provides about procedure generally to be adopted and Section 17 provides about judgment. It provides that judgment of a Family Court shall contain a concise statement of the case, the point for determination, the decision thereon and the reasons for such decision.
11. The object of framing Family Courts Act, 1984 was for speedy settlement of family disputes relating to marriage and family affairs and for matters connected therewith. It was in a background of a decision-making mechanism where emphasis should be much on conciliation and achieving socially desirable results and adherence to rigid rules of procedure and evidence were eliminated. It is for all these reasons, the Civil Procedure Code was made applicable as procedure generally to the suits or proceedings under the Act (other than the proceedings under Chapter IX of the Code of Criminal Procedure. 1973) subject to other provisions of the Act.
12. The phraseology of Section 10(1) which begins with the words like “subject to the other provisions of this Act” is of great importance. This clearly conveys an idea that the Code of Civil Procedure would not strictly and independently apply to the proceedings under this Act and if any other pro-vision is given in the Act, its application would be subject to that provision.
13. Order XX of the Code of Civil Procedure deals with ‘Judgment and Decree’. Rule 4 of Order XX talks about ‘Judgments of Small Cause Courts’. Sub-rule (1) of Rule 4 provides that judgment of a Court of Small Causes need not contain more than the points for determination and the decision thereon and Sub-rule (2), which talks about ‘Judgments of other Courts’, further provides that judgments of other Courts shall contain a concise statement of the case, the points for determination, the decision thereon and the reasons for such decision. Sub-rule (2) of Rule 4 of Order XX and Section 17 of the Act, 1984 both are similar to each other. Therefore, the Code of Civil Procedure which provides complete mechanism for decision of a civil suit and passing of the judgment and decree on the issues raised in a suit also makes provisions that the other Courts may pass such judgments which shall contain a concise statement of the case, the points for determination, the decision thereon, and the reasons for such decision and same provision has been inserted in the Family Court Act, 1984, and both these provisions do not talk about the ‘issues’ to be framed by the Court and the decisions on the ‘issues’.
14. Thus the procedure prescribed in Chapter IV of the Family Courts Act, therefore, is with the view to simplify the proceedings before the Family Court so as to achieve the objects of the Family Courts Act so that the matters are disposed of quickly without complying the strict provisions of the Code of Civil Procedure which, of course, was made generally applicable and was subject to the other provisions of the Act, 1984.
15. Therefore, in the light of the provisions of Section 17 and the other provisions of the Act, it is not mandatory for the Family Court to frame issues; however, its judgment must contain a concise statement of the case, the points for determination, the decision thereon and the reasons for such decision.
16. In the instant case, learned Judge of the Family Court has determined only two points for consideration vide Para 5(A) of the judgment that:
1. Whether the non-applicant Smt. Priyanka has allegedly deserted the applicant Subhash @ Prakash since continuous last 2 years from filing the application?
2. Whether the applicant Subhash @ Prakash is entitled to get the decree of divorce on the ground of desertion?
3. Relief and cost.
17. We find from the pleadings of the appellant/plaintiff that the ground of mental cruelty was pleaded by him which was denied by the respondent and the respondent has also raised the ground relating to cruelty by the appellant. This was in addition to the ground of desertion. The Family Court, as stated above, has only taken for determination the ground of desertion and the ground of cruelty was not taken by the Family Court.
18. That apart, we also note that no opportunity was granted to the appellant to cross-examine the above 3 witnesses of the respondent who had filed their affidavits in support of the pleadings of respondent (NAW-1). In light of the above facts and circumstances of the case, we find that a proper inquiry was not conducted by the Family Court to settle the dispute between the parties and the impugned judgment has been passed without considering all the grounds raised by the parties.
19. For the foregoing reasons, the appeal is allowed. The impugned judgment and decree dated 31.3.2010 passed by the Family Court are set-aside. Looking to the pleadings of the parties, we feel that it would be appropriate for the Family Court to frame issues in this matter. We, therefore, direct that the Family Court shall frame issues in the matter and shall call upon the parties to adduce a fresh evidence and shall dispose of the matter in accordance with law.
20. The cost is made easy.
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