Law Querier (Service) 11 December 2016

To decide issue of law in preliminary base after issue frame

The divorce petition on cruelty ground under Hindu Marriage Act has been signed, verified, affidavit and filed by POA holder of the petitioner without presence of petitioner in person before family court. The respondent has already mentioned the point of law in his reply/written statement that,” the divorce petition cannot be filed by POA holder as he is not authorised person to file the divorce petition and petitioner have to present the divorce petition before family court. So, the petition is liable to dismiss.” Then after, at first hearing of the suit, POA is appeared behalf of the petitioner and the respondent side did not raise the issue of non-maintainability of suit though the objection is raised in reply. Then after, the court has framed issues, but, the court has not framed issue of law for maintainability of suit/petition which is raised by respondent in his reply. Now, the matter is on mediation and petitioner’s evidence.
What respondent should do if he wants to decide this issue in preliminary base as the issue of law has objected in reply/written statement already and the court has not framed and not decided this issue of law?

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Originally posted by : Law Querier
	The divorce petition on cruelty ground under Hindu Marriage Act has been signed, verified, affidavit and filed by POA holder of the petitioner without presence of petitioner in person before family court. The respondent has already mentioned the point of law in his reply/written statement that,” the divorce petition cannot be filed by POA holder as he is not authorised person to file the divorce petition and petitioner have to present the divorce petition before family court. So, the petition is liable to dismiss.” Then after, at first hearing of the suit, POA is appeared behalf of the petitioner and the respondent side did not raise the issue of non-maintainability of suit though the objection is raised in reply. Then after, the court has framed issues, but, the court has not framed issue of law for maintainability of suit/petition which is raised by respondent in his reply. Now, the matter is on mediation and petitioner’s evidence. What respondent should do if he wants to decide this issue in preliminary base as the issue of law has objected in reply/written statement already and the court has not framed and not decided this issue of law?

Instead of finding technical error which does not exist, if you are willing to continue with the marriage,

Let go the ego.

Talk to wife, convince her to continue with the marriage.

Take the wife into confidence by showing love and affection.

If she does not want to continue with marriage at all which seems to be the case, agree for divorce. In our country this rarely happens that the woman wants divorce, this is God given opportunity to wash your hands off the relationship. Any effort to continue will only be hugely catastrophical to your life and well being. After a long time I have come across a case where there is no demand of money for getting divorce.

I suggest go for it, give consent and take divorce.

Alok Motan (Advocate) 11 December 2016

Makhan Lal Bangal Vs. Manas Bhunia (AIR 2001 SC490), the Hon’ble Apex Court held that

Framing of issue is an important stage at which scope of the trial is determined by laying the path on which the trial shall proceed. The duty of framing proper issue rests with the judge himself, however the parties and their counsels are bound to assist the court in process of framing issues”

U CAN MOVE THE APPLICATION FOR ADDITION OF ISSUE AND CAN GET THE SAID ISSUE FRAMED.

IN A SUIT AT ANY STAGE BEFORE THE PASSING OF JUDGMENT & DECREE, COURT CAN AMEND OR FRAME ADDITIONAL ISSUES.