JUDGMENT
R. L. Anand, J.
1. This is a wife’s appeal and it has been directed against the judgment and decree dated 10.1.2000 passed by the Court of learned District Judge, Bhatinda who allowed the petition under Section 13 of the Hindu Marriage Act of Shri Rakesh Ku-mar and granted the divorce to him on the ground of desertion and cruelty.
2. Parties to this appeal were married on 26.7.1998 at Fazilka. As per the case of the husband, after the marriage, the parties lived together as husband and wife at Muktsar up to 7.2.1989. Out of this wedlock, one male child was bom on 16.10.1989 who is residing with the appellant-wife. At the time of the marriage the appellant-wife was working as teacher.
3. The grouse of the petitioner i.e. husband is that after one month of the marriage, the respondent did not take the charge of the household affairs and when the, petitioner-husband requested her for the same me respondent-wife rebuked the petitioner in an unkind manner and outrightly rejected the request of the husband. This act of Ihe appellant gave a mental blow to the petitioner-husband who even tried to cope with the situation hoping that the respondent-wife might mend her behaviour in the near future. It was also alleged by the husband that as and when any of his relations used to visit his house, the appellant-wife in the presence of the guests used to insult. So much so the appellant-wife refused to share the bed with the respondent- husband which has led to depression. The appellant was compelling him to separate himself in mess as well as residence from his parents and when the respondent-husband could not accept the demand of the appellant-wife, her behaviour became more mde. Ultimately, the appellant-wife left the matrimonial home on 7.2.1989 without any reasonable excuse and without informing the respondent. He tried to make reconciliation but to no effect. So much so he filed the petition under Section 9 of the Hindu Marriage Act. In those proceedings the compromise was effected and the parties again started residing together as husband and wife, as a result of which, the petition under Section 9 of the I ttndu Marriage Act was dismissed. In pursuance to the compromise a separate house was taken on rent by the respondent-husband in which they resided together up to 2.5.1995. However, the behaviour of the appellant-wife did not change and she again left the house on 25.9.1995. Since the appellant-wife has deserted the petitioner arid since her desertion is more than for a period of two years, therefore, the respondent-husband is entitled to a decree of divorce.
4. The allegations were contested by the appellant-wife and her defence was that the behaviour of her hus-band was cruel. He wanted more dowry. A rejoinder was also filed, as a result of that the following issues were framed:
1. Whether the respondent has treated the petitioner with cruelty ? OPA
2. Whether the respondent has deserted the petitioner without any reasonable cause or excuse ? OPA
3. Relief.
The parties led evidence and finally the decree for divorce was granted vide impugned order dated 10.1.2000 and the petition filed by the husband was allowed. Aggrieved by the judgment and decree of the trial Court, the present appeal has been filed by the wife.
5. I have heard Shri H.S. Gill, Sr. Advocate, appearing on behalf of the appellant-wife and Shri CM. Munjal, Advocate, appearing on behalf of the petitioner-husband.
6. Reconciliation efforts were also made in this case. This Court succeeded to sortie extent and the appellant went to the house of the respondent. She lived with the petitioner-husband for some period. Still the parties could not reconcile their differences. Their temporary re-union was more than under the orders of this Court rather than that of their free will and volition. In these circumstances, I called upon the parties to address the arguments on merits.
7. Shri H.S. Gill, learned Senior counsel, submitted that this case is liable to be remanded on the short ground that the trial Court has not framed issue No. 2 in a right perspective. He submitted that this issue was whether the respondent deserted the petitioner without any reasonable cause or excuse. This alone is not sufficient to comply with the mandate of the law. Mr. Gill submitted that as per the provision of Section 13 of the Hindu Marriage Act, it has to be proved by the petitioner that the opposite spouse has deserted the petitioner wilhout any reasonable cause for a continuous period of not less than two years prior to the filing of the petition. Since issue No. 2 has not rightly been framed by the trial Court, a prejudice has been caused to the appellant and, therefore, case is liable to be remanded and directions should be given to the trial Court to frame the proper issues in the light of the provisions of Section 13(1)(ib) of the Hindu Marriage Act.
8. On the contrary, learned counsel Shri Munjal submitted that no prejudice has been caused to the appellant. Evidence was led by the parties after understanding the pleading and case of each other. Merely that a issue has not been rightly framed is no ground to remand the case.
9. I am not convinced with the submission raised by the learned counsel for the respondent. These are sensitive proceedings and a petition can succeed only by proving the allegations in pursuance to the law. Section 13(1)(ib) lays down that any marriage solemnised whether before or after the commencement of this Act. may, on a petition presented by either the husband or the wife, be dissolved by decree of divorce on the ground that the other party has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition. In these circumstances, it was obligatory on the part of the Court to frame proper issue. We all know that it is the duty of the Court to frame issues and this power cannot be delegated to anybody else. The issues are framed with a purpose so that the parties may be able to know on which issue they are going to fight with each other and what are the disputed questions of fact and law. Since the appellant was misled with regard to issue No. 2, there may be a desertion on her part but if that desertion is not for a continuous period of two years, the husband cannot succeed on this ground.
In this view of the matter, I allow this appeal; set aside the judgment and decree of the trial Court and remand the case to the learned District Judge, Bhatinda who will frame the proper issues in this case, especially. Issue No. 2 and dispose of the main petition within six months from the receipt of the copy of this order. The parties through their counsel are directed to appear before the teamed District Judge on 15.1.2000. There shall be no order as to costs.
10. Appeal allowed.