USHA RATILAL DAVE Vs. ARUN B DAVE

JUDGEMENT

(1.) This appeal involves an important question of law- whether a decree of Legal Separation obtained in Illinois (U.S.A.) Court be availed of in Indian Court for dissolution of marriage by a decree of divorce under sec. 13 of the Hindu Marriage Act 1955 (hereinafter referred to as the Act) when both the spouses are Hindus by Personal Law and married in India according to Hindu rites ?

(2.) The respondent-husband filed a petition being H.M.P. No. 143 of 1980 in the City Civil Court Ahmedabad for obtaining divorce. The said petition was allowed and the marriage between the parties was dissolved by a decree of divorce dated 25-9-1981 passed by the learned Judge of the City Civil Court 19 Court Ahmedabad. It is not in dispute that the parties had married at Ahmedabad on 17-5-1968. By this wed-lock they have two daughters Vaishali and Hetal. The husband filed a complaint for divorce in the Circuit Court of Cook County. Illionois County Department Chancery Divorce Division (U.S.A.) alleging that the husband and wife (present appellant) stayed together (It Ahmedabad till 30-12-1972 and thereafter the wife deserted the husband without any reason or cause and started living with her parents. and though several attempts were made there was no result. It is the case that the wife resisted the said complaint and made accusation against the husband. The learned Judge of County Court Illinois however after the trial passed a decree for legal separation on 14-3-1979. It is the case that the husband was employed in the Austi Electric Company and he was to get Green Card for obtaining citizenship of U.S.A. But the wife wrote letters to the U.S.A. Government and Indian Authorities and the husband was forced to leave U.S.A. and thus the husband has been deprived of his lucrative job and a decent living. It is also an agreed fact that young daughter Hetal is with the wife but it is an allegation that she left elder daughter Vaishali with the husband. Then it is the case that the wife deserted the husband on 30-12-1972 and thereafter the parties have never resided together till 14-3-1979 the day on which the decree for legal separation was passed.

(3.) It should be noted that the husband has come out with a case that in his complaint for divorce decree for legal separation was passed meaning thereby in his favour. In his deposition also the tone is that he filed the suit for divorce but a decree for legal separation was granted. In fact now it is proved on record that the said decree for legal separation was passed in favour of the wife who demanded maintenance and also claimed that the husband had deserted her and therefore the suit of the husband for divorce was negatived and the claim of the wife for legal separation was granted. Anyway on the strength of that decree for legal separation the husband filed the aforesaid Hindu Marriage Petition in the City Civil Court Ahmedabad for dissolution of marriage by a decree of divorce under sec. 13(1-A) of the Act.