T M BASHIAM Vs. M VICTOR

JUDGEMENT

(1.) THIS is a reference by the learned District Judge of South Arcot at Cuddalore, under Sections 10 and 17 of the Indian Divorce Act (4 of 1869), for making absolute the decree nisi granted by him dissolving the marriage between the petitioner and the respondent. As the entire reference involves an issue of law with regard to jurisdiction, and, further, an issue concerning which we are unable to see any room for doubt or difficulty, it is not necessary to canvass the merits, except to the strict extent required for the disposal of this reference.

(2.) IT is admitted that in certain earlier proceedings between the parties, which are among the typed papers as O. P. No. 240 of 1962, a decree was granted in favour of the petitioner (the wife) for judicial separation from the respondent (the husband) under Section 22 of the Indian Divorce Act. The petitioner alleges that though four years have passed since that decree, there has been no resumption of matrimonial living between the parties. In brief she now desires that she should be granted a decree nisi for dissolution of the marriage, merely because of the lapse of an interval of four years after the decree for judicial separation under Section 22.

(3.) IT is sufficient to point out that this is plainly opposed to the scheme and the provisions of the Indian Divorce Act (4 of 1869 ). Though one may doubt the wisdom of the legislative provisions of this Act, in the light of more progressive marriage laws that have since been enacted with regard to other communities, as far as the parties governed by this Act are concerned, the decree for judicial separation does not ripen into a decree for dissolution of the marriage, because of the lapse of any interval of time. On the contrary, a wife under this Act, can obtain a decree for dissolution of the marriage under Section 10 only on the grounds exhibited under that section. If she alleges adultery against the husband, it will either have to be adultery coupled with cruelty as defined in the relevant clause, or adultery coupled with desertion for two years or upwards.