KAMLA DEVI Vs. ATMA RAM

JUDGEMENT

(1.) THIS is a wife's second appeal in her proceeding for judicial separation or in the alternative divorce. The petition was filed on 10th August, 1974. The relief claimed was judicial separation on the ground of desertion for a period of about three years before the presentation of the petition. The petition was amended and the ground of cruelty was also added for claiming divorce. The trial Court had initially framed two issues, namely : "1. Whether the petitioner was cruelly treated and asked to lead immo ral life and deserted by the respondent as alleged ? If so, its effect ?

(2.) WHAT relief is the plaintiff entitled to ?'' A third issue was added later on, namely : "3. Whether the petiticner has been continuously and repeatedly cruelly treated by respondent as alleged ? If so, its effect ?" The trial Court found on the appraisal of the evidence on record that while it was not proved that the respondent husband "persistently and continu ously misbehaved" against the petitioner, such as to give her a ground for divorce under Section 13 (1) of the Hindu Marriage Act, and although she could not prove that the respondent had deserted the petitioner for more than two years before the presentation of the petition, such as to entitle her to judicial separation, it was found that the respondent had proved that the petitioner was guilty of cruelty such as to cause apprehension in her mind that it would be harmful or injurious to live with him, and on this ground, granted the petitioner appellant a decree for judicial separation. The lower appellate Court has been rather critical of the findings of the trial Court and has observed that the trial Court has given inconsistent find ings. I am afraid that the learned District Judge, who heard the appeal, did not notice the distinction between the kind of cruelty under clause (i-a) inserted in sub- section (1) of Section 13 of the Hindu Marriage Act, by U. P. Act No. 13 of 1962, with retrospective effect, and the kind of cruelty contem plated by clause (b), sub-section (1) of Section 10 of the Hindu Marriage Act. As introduced by Act No. 13 of 1962, Clause (i-a) of sub-section (1) of Section 13 of the said Act ran as under:- 13 (1) (i-a)-"has persistently or repeatedly treated the petitioner with such cruelty as to cause a reasonable apprehension in the mind of the petitioner that it will be harmful or injurious for the petitioner to live with the other party ; or" Clause (b) of sub-section (1) of Section 10 of the said Act ran as follows :- 10 (1) (b)-"has treated the petitioner with such cruelty as to cause a reasonable apprehension in the mind of the petitioner that it will be harmful or injurious for the petitioner to live with the other party; or" The distinction between the two clauses is that cruelty in order to be a ground for divorce had to be persistent and repeated, while as a ground for judicial separation, it was not necessary that it should have been persistent or repeated. The learned District Judge would have, if he had gone through the two clauses carefully, at once found that there was no contradiction in the findings recorded by the trial Court. The observation of the learned District Judge that the trial Court did not frame any issue on the question of cruelty for the purposes of relief of judicial separation under Section 10 of the Hindu Marriage Act, also proceeds on a misapprehension of the legal position. Issue No. 1 did clearly raise the question whether the petitioner was treated cruelly and the context in which this question was raised, was the claim for judicial separation. It is, therefore, clear that the judgment of the lower appellate Court is vitiated by errors of law. With regard to the finding recorded by the learned District Judge on a reappraisal of the evidence on the point of cruelty, I have to observe that the provisions of Sections 10 and 13 of the Hindu Marriage Act have been drasti cally amended retrospectively by the Marriage Laws (Amendment) Act, 1976. The result of these amendments is that while it was necessary even for claim ing judicial separation that cruelty must be such as to cause a reasonable apprehension in the mind of the petitioner that it will be harmful or injurious for her/him to live with the other spouse, now after the amendment, a petitioner is entitled to a decree of divorce if he/she proves simply that the other spouse has, after the solemnisation of the marriage, treated him/her with cruelty. Section 39 of the Marriage Laws (Amendment) Act, 1976, gives retrospective effect to the amendments made by it. On the facts found proved by the trial Court, and on the facts and circumstances appearing from the material on record, it is clear that the respondent has, after the solemnisation of the marriage, treated the petitioner-appellant with such cruelty as to entitle the petitioner-appellant to a decree of divorce, and on a consideration of the facts and circumstances of the case, I do not find any good ground or reason for refusing to grant a decree of divorce. In the result, the appeal succeeds and is allowed. The judgment and decree of the lower appellate Court are set aside and the marriage between the parties is dissolved by a decree of divorce. The appellant shall be entitled to her costs throughout.