JUDGMENT
D.S.R. Varma, J.
1. Heard both sides.
2. This appeal is directed against the judgment and decree passed in O.P.No. 118 of 2003, dated 23rd June, 2005, on the file of Family Court at Hyderabad, in granting divorce.
3. The wife is the appellant herein. For the sake of convenience, the parties herein, are referred to as ‘wife’ and ‘husband’.
4. Facts in brief are that the husband filed O.P.No. 118 of 2003, seeking divorce of the marriage on the ground of cruelty alone.
5. It appears that the marriage was solemnized on 15-4-2001. After the marriage the couple set off for honeymoon to Ooty and the marriage actually was consummated during honeymoon. It is averred by the husband that during the honeymoon period, the wife started being disinterested in the marital life. Sometimes, it was alleged that she was moody and she used to withdraw from the association of the husband. After enquiries about the above attitude, the wife allegedly informed that the marriage was against her will. In view of the said revelation and apathetic attitude allegedly exhibited on the part of the wife, the honeymoon trip was cancelled all of a sudden and the couple returned back. But this attitude was not revealed to anyone. It is further averred that his wife used to lead a secluded life and not even used to give company at the dining table. The further averment was that it was only the mother, who used to serve the husband. The wife has withdrawn from the society of the petitioner and expressed her unwillingness to lead the marital life and in fact, she was searching for some solution to come out of the wedding lock. It is his further averment that the wife used to visit her parents’ house, and she also demanded a sum of Rs. 2,00,000/- from him, which was allegedly spent for the purpose of marriage to be returned back to her, in order to lead an independent life. The further allegation is that his wife threatened the husband that she would see that he would be sent to jail. Perhaps, in that context a police complaint also had been given and the same was registered as Crime No. 10 of 2002. It appears that the said complaint though registered as Crime No. 10 of 2002, was not pressed by the wife and a legal notice also appears to have been issued with some allegations followed by a reply notice by the husband because of this attitude. It is averred that the husband was subjected to serious mental agony and hence, the same amounts to cruelty and harassment.
6. On the other hand, the wife contended that it was the husband who was forcing her to leave the house and the mother-in-law also started harassment on the ground that no valuable articles were given at the time of marriage. All other averments made by the husband have been denied. The trial court formulated the following issues.
(i) Whether the petitioner was subjected to harassment by respondent amounting to cruelty?
(ii) Whether the petitioner is entitled to decree of divorce as prayed for in the petition?
(iii) To what relief?
7. The trial Court after going through the merits of the case and relying on the evidence, both oral and documentary, eventually granted divorce. Hence, the present appeal filed by the wife.
8. The husband himself got examined as P.W.1 and P.W.2 to P.W.4 were also examined on his behalf and Exs.P-1 to P-11 were marked. Wife herself got examined as R.W.1 and a witness who is her grand father was also examined as R.W.2 on her behalf and no documents were marked.
9. From the evidence of P.W.1, it can be seen that he admitted that on account of depression due to behaviour of the wife, he started coming home late. In that context, it was suggested to PW-2 that the husband (P.W.1) was having illicit relationship with many women, even prior to the marriage. A suggestion was also made to P.W.2 that at the time of marriage there was a demand for Maruti Car. But the above submissions were not pleaded in the petition at all by the husband nor were pleaded by the wife, who was examined as R. W.1 in her counter that at the time of marriage P.W.1 and his parents demanded a Maruti Car and demanded some additional amounts.
10. The substance of pleadings of both the parties in OP are totally different to the statements made during trial. Illicit intimacy had been averred by both the parties only during the course of cross-examination but not in the pleadings. The established principle of law is that any issues that were not pleaded cannot be raised in the trial.
11. Further, the main ground, in nutshell, for divorce was that the wife was not cooperating with the husband and that the marriage was against her will. Of course, some incidental claims have been made but the same have never been successfully established by the wife.
12. The husband, who made certain averments, which according to him, amounts to cruelty also did not establish successfully.
13. Strangely a new dimension has been given to the case for divorce by the husband and a suggestion was put to the wife that she had an affair with somebody. It is the further case of the husband that this revelation was made during the honeymoon period and this is not the case of husband at all in the original petition. A counter allegation was made by the wife on the same lines against the husband also, but that also was not created in the counter while refuting the averments in the OP.
14. The learned trial Judge having gone through the evidence on record, instead of recording a finding whether the conduct of the wife as averred in the petition was established or not observed as under:
“Even assuming that PW-1 has failed to establish his case against R.W.1 still when R.W.1 has levelled a serious allegation that P.W.1 is having illicit relationship with one Sudha, Lavanya and Madumitha but could not establish the same before the court then on that score P.W.1 is entitled to divorce”.
15. In this context, it is to be remembered that it is the husband, who filed OP for divorce and therefore, he has to establish cruelty as alleged by him. No new grounds, which are not pleaded in the petition, can be taken up during trial and they need not be established. Further, it can be seen from the evidence that it is only the allegation and counter allegation levelled by each party against the other about the alleged illicit intimacy with others. This, in fact, is originally nobody’s case.
16. Therefore, the trial court, in our view was in serious error in taking into consideration the mere suggestions made by parties during cross-examination. Even if those new allegations were established, since they are not pleaded originally, the same cannot be treated as grounds for divorce. Yet another important thing has to be noted is that no permission was sought by either of the parties from the Court to take additional pleas, on which the trial Court recorded finding and granted divorce. In our view, procedure and practice adopted, reasoning and the eventual conclusion that it was a case for divorce, is totally mis-conceived.
17. For the aforementioned reasons, we are of the considered view that the husband failed to establish cruelty on the part of the wife and we are also of the view that the Court below cannot invent new grounds on its own, without there being any request made by the parties to take additional grounds and rely on the mere suggestions and grant divorce. Therefore, the impunged judgment and decree passed by the Court below is liable to be set aside and is accordingly set aside.
18. In the result, the Family Court Appeal is allowed. No order as to costs.