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.
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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
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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.
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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
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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
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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
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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
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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
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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.
(D. M. DESAI,J)
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