MARIA MERCY VIRGENIA Vs. LAZAR

JUDGEMENT

(1.) THE petition by wife is filed under Sections 22 and 23 of the Indian Divorce Act. But the prayer in the petition is one for grant of divorce, though there is no allegation of any adultery in the petition and the allegations made in the petition speak only of cruelty. In the evidence, the petitioner has only spoken about the cruelty and she has not whispered about adultery. However, the learned District Judge, after accepting the evidence of P.W. 1, has granted a decree for divorce as prayed for in the petition.

(2.) THAT decree for divorce is obviously not sustainable. Under Section 10 no decree for divorce can be granted on the ground of cruelty, but there should be adultery coupled with cruelty. Cruelty must be such as would entitle the petitioner to get divorce mensa et toro . In this case, what all the petitioner has proved is only cruelty which will entitle her to a decree for judicial separation. Hence, the decree for divorce has to be set aside. As laid down by the Full Bench of this Court in Doris Padmavathy v. Christodass ) reported in A.I.R. 1970 Madras page 188 = 82 L.W. 595 FB this Court is competent to pass a decree for judicial separation under Section 22 under such circumstances. Hence the decree passed by the District Judge is set aside. Instead, there will be a decree for judicial separation in favour of the petitioner in the Original Petition.