Sunil Kumar vs Prasobhadevi

Antony Dominic, J.—The appellant and the respondent are husband and wife and their marriage was solemnized on 7/5/2006. The husband filed OP No. 687/2012 before the Family Court, Nedumangad seeking divorce on the ground of cruelty and desertion. The Family court by its judgment under appeal declined to accept both the contentions and dismissed the OP. It is challenging this judgment, the appeal has been filed. The contention raised by the learned counsel for the appellant is regarding the finding of the Family Court as contained in para 9 of the judgment. In this paragraph, Family Court has dealt with the evidence of PW 3 and rejected the case of the appellant that the child born to the respondent is an illegitimate one. In other words, what the Family Court has rejected is the ground of adultery alleged by the appellant against the respondent wife.

However, what we notice is that though the ground of adultery was raised before the Family Court and evidence also is seen to have adduced, such a case was not pleaded by the appellant in the OP filed by him. It was despite that fact, the Family Court has entertained the plea.

In our view, this course adopted by the appellant and entertained by the Family Court is clearly erroneous. Law requires that a person should set out his case in clear terms in the OP filed by him and evidence also cannot be allowed to let in, in respect of an issue which is not pleaded.

In fact, Rule 7 of the Hindu Marriage (Kerala) Rules, 1963, which deals with contents of petition, provides in sub rule 4 thus;

(4) In every petition presented by a husband for divorce on the ground that his wife is living in adultery with any person or persons or for judicial separation on the ground that his wife has, after the solemnization of the marriage, had sexual intercourse with any person or persons other than him, the petitioner shall state the name, occupation and place of residence of such person or persons so far as they can be ascertained.

This requirement of the Rule is also not satisfied in this case. This legal position has also been clarified by this Court in M.K. Kunhiraman Vs. Santha alias Devaki, Therefore, we are not persuaded to think that any interference with the judgment of the Family Court is required on the ground that the Family Court has wrongly appreciated the case of adultery urged by the appellant.

Appeal is dismissed.