JETHABHAI RATANSHI LODAYA Vs. MANABAI JETHABHAI LODAYA

JUDGEMENT

(1.) This is a letters patent appeal by the original petitioner-husband against the decree of Mr. Justice Gatne in appeal confirming the decree of the City Civil Court. Bombay, dismissing his petition for divorce and raises a point of importance and interest arising out of judicial separation, namely, whether desertion by a spouse on which ground a decree for judicial separation was passed in favour of the original petitioner spouse under Section 10(1) (a) of the Hindu Marriage Act. 1955 ( hereinafter referred to as the Act) continues unless the original respondent spouse makes efforts to resume cohabitation and constitutes a wrong which would disentitle the spouse so failing to get the relief of divorce on ground of non-resumption of cohabitation, and involves construction of Sections 10(2), 13 (1A), 23 (1) (a) of the Act.

(2.) The facts are not in dispute. The appellant is the husband and was married to the respondent wife according to Hindu FDIC rites on Dec. 16, 1956 at Bombay. They lived together for about 5 months at Thana till May 1957 when the wife left the husband and continued to live separately from him. On April 26, 1961 the wife filed Miscellaneous Petition No.1526 of 1961 in the City Civil Court at Bombay for judicial separation on the grounds of desertion, cruelty and adultery. The husband filed his written-statement denying the said allegations. In November 1963 when the suit came up for hearing the wife did not press her allegations of cruelty and adultery and the husband did not contest the suit on the remnant ground of desertion and the Court passed a decree for judicial separation on the ground of desertion. No attempt was made for reconciliation between the parties and on March 10, 1968 the husband filed M. Petition No.1735 of 1968 against the wife in the Bombay City Civil Court for divorce on the ground of non-resumption of cohabitation under Section 13(1A) (i) of the Act. At the hearing of the suit on the 12th October 1968 the husband gave evidence and categorically stated that he made no attempt to see or meet the wife because the parties were separated by the decree of judicial separation. The wife did not examine herself or led any evidence. On this evidence the learned trial Judge dismissed the petition observing that Judge dismissed the petition observing that husband's explanation for not making any attempt to take back his wife did not help him and he had committed a wrong within the meaning of section 23(1) (a) of the Act. On appeal to this Court by the husband Mr. Justice Gatne confirmed the decree on the same ground on October 12, 1971. The husband has now preferred this appeal against the said decision.

(3.) Mr. Rele for the appellant-husband has assailed the decree on two grounds, first the amended Section 13 (1A), which confers an absolute and unqualified right on either party to obtain divorce on ground of non-resumption of cohabitation for a period of two or more years after the passing of a decree for judicial separation is not subject to or controlled by Section 23 of the Act and, therefore, the question of the husband having committed a wrong or taking advantage thereof for his present petition within Section 23(1) does not arise; and secondly, that even if Section 23(1) applies, the husband was under no duty after judicial separation to take steps for resuming co-habitation and, therefore, his omission to do so did not amount to a desertion and, therefore, not a wrong within the meaning of the said Section 23 (1) (a). Mr. Thacker for the wife has contested the above propositions and supports the judgment of the Court below. It is obvious that if the appellant succeeds on either of his above contentions the appeal will have to be allowed.