JIVUBAI Vs. NINGAPPA ADRISHAPPA YADWAD

JUDGEMENT

(1.) This is an appeal under Section 28 of the Hindu Marriage Act, 1955, against the decree granting judicial separation to the Respondent (husband) from the Appellant (wife) made by the Civil Judge (S. D.) at Bijapur and confirmed on appeal by the District Judge Bijapur.

(2.) It is not disputed that the parties were married in 1948 and lived amicably till about March 1950 when the Appellant went to her father's house and that she did not join her husband till the date of the petition for judicial separation in October 1956. The parties were at variance In regard to the reasons for their being so separated. While it was the husband's case that in spite of repeated efforts to get Ms wife back she stayed away, the latter averred that, even though she was willing to rejoin her husband and made efforts in that direction, he would not take her back. The two courts below, after having gone through the oral and documentary evidence in the case, have concurrently held that it was the wife who deliberately stayed away and since that was for a period of more than 2 years mentioned in Section 10(1)(a) of the Act the husband was entitled to judicial separation.

(3.) The scope of an appeal under Section 28 is the same as that under any law for the time being in force, which means the Code of Civil Procedure. This being a second appeal, there can be no interference on findings of fact. The learned Advocate for the Appellant, however, contends that the Courts below have not properly appreciated the scope of Section 10(1)(a) of the Act, inasmuch as they have taken the view that mere separation between the parties would amount to desertion on the part of the wife, that they have not properly appreciated the evidence, particularly the documentary evidence in the shape of letters, and that the trial court did not make every endeavour to bring about reconciliation between the parties as it was its duty to do under Section 23(2) of the Act.