Gujarat High Court
Shaily W/O Kunal Agrawal D/O Sanjaybhai ... vs Kunal Nandlal Agrawal on 29 July, 2025
NEUTRAL CITATION
C/SCA/10531/2025 ORDER DATED: 29/07/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 10531 of 2025
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SHAILY W/O KUNAL AGRAWAL D/O SANJAYBHAI BADRINARAYAN ALOK
Versus
KUNAL NANDLAL AGRAWAL
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Appearance:
MR DARSHAN K KOTHARI(14004) for the Petitioner(s) No. 1
MR NEHUL L DAVE(2411) for the Petitioner(s) No. 1
MR BHADRISH S. RAJU for MR DHANESH R PATEL(8226) for the
Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE DEVAN M. DESAI
Date : 29/07/2025
ORAL ORDER
1. By way of this petition, under Article 227 of the Constitution of India, the petitioner has prayed for the quashing and setting aside the order dated 23.7.2025 of recasting the issues passed below Exh.104 in Family Suit No.1963 of 2021 passed by the learned Judge, Family Court No.7, Ahmedabad.
2. Heard learned advocate Mr. Nehul Dave for the petitioner and learned advocate Mr. Bhadrish Raju for learned advocate Mr. Dhanesh R. Patel for the respondent. Perused the record.
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3. The facts in brief of the case are as under:
* The present respondent filed a Family Suit under Section 13(1)(i-a) of the Hindu Marriage Act. On the basis of the plaint, issues were framed by learned Family Court vide Exh.18. Thereafter, written statement came to be filed pursuant to the order passed by this Court in Special Civil Application No.4707 of 2022 dated 2.5.2022 and the petitioner - wife was permitted to file written statement. Thereafter, the petitioner - wife filed written statement against the plaint in the month of July, 2022 to which plaintiff - respondent submitted affidavit in lieu of examination in chief. * Thereafter, the plaintiff moved an application Exh.104 for recasting of issues. After hearing the parties, learned Family Court deleted issue No.2 and framed additional issues on the basis of averments made in the written statement by the petitioner. Page 2 of 11 Uploaded by VATSAL S. KOTECHA(HC00352) on Thu Jul 31 2025 Downloaded on : Thu Jul 31 22:41:29 IST 2025
NEUTRAL CITATION C/SCA/10531/2025 ORDER DATED: 29/07/2025 undefined Being aggrieved and dissatisfied with the impugned order, the petitioner - wife is before this Court.
4. Learned advocate for the petitioner has submitted that the respondent filed a Family Suit for decree on the ground of cruelty, desertion and adultery. As the petitioner wife did not file any written statement, the stage to file written statement was closed by the learned Family Court and, therefore, petitioner wife filed Special Civil Application No.4707 of 2022, wherein, the petitioner was permitted to file written statement. Pursuant to the order passed by this Court, petitioner wife filed a written statement in the month of July 2022. After about 2 years of filing written statement, the respondent husband submitted affidavit in lieu of examination in chief and thereafter an application exhibit 104 came to be filed praying for recast of issues. It is contended that it is a specific allegation of the plaintiff - respondent that the wife has deserted him without any reasonable cause and the respondent husband is subjected to cruelty by the wife. It is further contended that in the Page 3 of 11 Uploaded by VATSAL S. KOTECHA(HC00352) on Thu Jul 31 2025 Downloaded on : Thu Jul 31 22:41:29 IST 2025 NEUTRAL CITATION C/SCA/10531/2025 ORDER DATED: 29/07/2025 undefined plaint, the respondent husband also alleged against the character of the petitioner wife and it is alleged in the plaint that the respondent wife is having illicit relations with the 3rd person. The application which was granted by the learned Family Court is against the settled principle of law and the learned Family Court has wrongly shifted the burden of proving cruelty on the shoulders of the petitioner
- wife. It is further contended that petitioner -wife has not prayed any reliefs in the written statement and, therefore, no issues can be framed throwing the burden wife to discharge it. He has placed reliance upon the following decisions.
(A) A decision dated 8.9.2010 passed in SCA No.10755 of 2010 of the coordinate bench of this Court in the case of Babubhai Govindbhai v. Dayakorben Wd/o Maganlal Prabhubhai & (B) A decision dated 25.1.2011 passed in SCA No.730 of 2011 of the coordinate bench of this Court in the case of Samsudin Kamarudin Shaikh v. Hirjibhai Karamshibhai.
5. No other submissions are made except the above by the learned advocate for the petitioner. Page 4 of 11 Uploaded by VATSAL S. KOTECHA(HC00352) on Thu Jul 31 2025 Downloaded on : Thu Jul 31 22:41:29 IST 2025
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6. Per contra, learned advocate for the respondent has contended that when the issues exhibit 18 came to be framed by learned Family Court, there was no Written Statement on record on behalf of the petitioner - wife and pursuant to the order passed by this Court on 2.5.2022 in Special Civil Application No.4707 of 2022, the petitioner wife filed written statement in the month of July, 2022 and immediately thereafter the petitioner wife filed an application under Section 24 of the Act in the month of October, 2024. The said application came to be decided in the month of November, 2024 by the learned Family Court. Immediately after the application under Section 24 came to be decided, the respondent herein moved an application exhibit 104 seeking for recasting of issues. It is contended that the plaintiff has not pleaded any averment in the plaint with regard to voluntary sexual intercourse with any person by the petitioner wife. In absence of any specific averment which is the mandatory requirement for invoking the provisions of Section 13(1)(i-a) of the Act, a request Page 5 of 11 Uploaded by VATSAL S. KOTECHA(HC00352) on Thu Jul 31 2025 Downloaded on : Thu Jul 31 22:41:29 IST 2025 NEUTRAL CITATION C/SCA/10531/2025 ORDER DATED: 29/07/2025 undefined was made to delete issue No.2. The learned Family Court has rightly exercised its power and deleted issue no.2.
7. It is contended that in the written statement in paragraph No.5.3, the petitioner wife has specifically made counter allegations of cruelty and in the written statement the petitioner has specifically come up with a case that the petitioner and respondent had cohabited as husband and wife at her maternal home until February 2021. The contention of the plaintiff in the plaint that the wife has deserted the husband without reasonable cause for deciding such issue, when the wife is coming out with a specific assertion of staying together at the maternal home of the petitioner wife, issue no. 4 was rightly recast. He has placed reliance upon the following decision of Hon'ble Apex Court in the case of Vijaykumar Ramchandra Bhate v. Neela Vijaykumar Bhate reported in 2003(6) SCC, 334 and contended that even in the allegations made in the written statement by the petitioner - wife are not proved by her, it would amount to cruelty. The allegations levelled against Page 6 of 11 Uploaded by VATSAL S. KOTECHA(HC00352) on Thu Jul 31 2025 Downloaded on : Thu Jul 31 22:41:29 IST 2025 NEUTRAL CITATION C/SCA/10531/2025 ORDER DATED: 29/07/2025 undefined the respondent - husband in the written statement are in the nature of cruelty.
8. By referring provisions contained under Order 14 - Rule 1 of Code of Civil Procedure, learned advocate for respondent contended that the issues can be recast at any stage of the suit before the pronouncement of the judgment. No other submissions are made except the above by the learned advocate for the respondent.
9. I have considered the submissions canvassed by learned advocates for the respective parties and perused the papers placed on record.
10. In the Family Suit filed by the respondent, the plaintiff has sought divorce on the grounds of cruelty, desertion and dependency of the suit. The plaintiff has filed a Family Suit for seeking divorce under Section 13(1)(i-a) of the Act. The stage of filing written statement was closed by the learned Family Court and thereafter issues came to be framed at Exhibit 18 by the learned Family Court on 4.3.2022. It Page 7 of 11 Uploaded by VATSAL S. KOTECHA(HC00352) on Thu Jul 31 2025 Downloaded on : Thu Jul 31 22:41:29 IST 2025 NEUTRAL CITATION C/SCA/10531/2025 ORDER DATED: 29/07/2025 undefined appears from the record that the petitioner filed Special Civil Application No.4707 of 2022 before this Court and by order dated 2.5.2022, the petitioner wife was permitted to file written statement and it was also observed in the said decision that on the basis of written statement, the learned Family Court to recast issues. From the submission canvassed by learned advocate for the respondent, it appears that the petitioner wife filed an application under Section 24 of the Hindu Marriage Act for claiming alimony which came to be decided in the month of November, 2024. In between, the disputes between the petitioner and respondent reached upto the highest Court i.e. before the Honorable Supreme Court and Honorable Supreme Court directed the Family Court to decide the application under Section 24 of the Hindu Marriage Act before deciding the Family Suit filed by the present respondent.
11. After application under Section 24 of the Act came to be decided, the plaintiff submitted examination in chief in the month of December, 2022 and thereafter, the application Page 8 of 11 Uploaded by VATSAL S. KOTECHA(HC00352) on Thu Jul 31 2025 Downloaded on : Thu Jul 31 22:41:29 IST 2025 NEUTRAL CITATION C/SCA/10531/2025 ORDER DATED: 29/07/2025 undefined for recast of issues came to be filed by the plaintiff vide exhibit 104 on 19-11-2024. The position of law is clear that issues can be recasted / modified / altered at any stage of the trial before the pronouncement of the judgment. Order 14 - Rule 1 of the Code envisages a power to the Court to frame issues on the material propositions of law or fact affirmed by one party and denied by the other. It appears from the plaint that the plaintiff has alleged desertion and cruelty against the respondent's wife and in the written statement, the petitioner has not only denied the allegation of desertion and cruelty, but has positively asserted that the father of the plaintiff called the father of the wife and demanded jewellery worth Rs.50 lakhs. It is also asserted by the petitioner that the petitioner and his family were physically and mentally committed cruelty upon the petitioner's wife and on the basis of the pleadings learned Family Court had recasted the issues.
12. The scope under Article 227 of the Constitution of India is very narrow and this Court can only interfere in the order Page 9 of 11 Uploaded by VATSAL S. KOTECHA(HC00352) on Thu Jul 31 2025 Downloaded on : Thu Jul 31 22:41:29 IST 2025 NEUTRAL CITATION C/SCA/10531/2025 ORDER DATED: 29/07/2025 undefined impugned if the same is de hors the provisions of law and there is patent illegality and arbitrariness in arriving at the conclusion. Moreover, considering the conduct of the petitioner, exercise of powers under Article 227 of the Constitution of India cannot be invoked since the learned advocate for the petitioner could not point out any gross error being committed by learned trial Court.
13. I am of the opinion that while allowing the application exhibit 104, the learned Family Court has not travelled beyond the provisions of law and has not committed any error or error of law. Moreover, the learned advocate for the petitioner could not point out any grave illegality committed by the learned Family Court in allowing the application.
14. Under the circumstances, the petition lacks merit and deserves to be dismissed and accordingly, it is dismissed. Interim Relief, if any, stands vacated forthwith. No order as to costs.
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15. However, it is made clear that the learned Family Court, while deciding the Family Suit, shall not be influenced by the observations made hereinabove and shall decide the controversy as per evidence and law.
16. After passing the above order, learned advocate for the petitioner has requested to stay this order for 4 weeks to which learned advocate for the respondent has objection. Such request of learned advocate for the petitioner is rejected.
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