AMARTHALA HEMALATHA Vs. DASARI BALU RAJENDRA VARAPRASAD

JUDGEMENT

(1.) This reference application has come before us under Section 17 of the Indian Divorce Act 1869 (hereinafter called the Act) for confirmation of the order of lower Court in regard to the dissolution of marriage between the petitioner and the respondent.

(2.) The petitioner before the learned District Judge was the wife and she filed the application under Sec. 14 of the Act for dissolution of the marriage between her and the respondent. It is averred in the petition that the petitioner and the respondent are Christians and have been married on 6-1-1975 at Eluru, that the husband deserted the petitioner and that he filed O.P. No. 88/82 under Section 22 of the Indian Divorce Act on 7-6-1982 seeking judicial separation. The Court granted a decree for judicial separation on 29-6-1984 in favour of the husband. Alleging that after the said decree the parties have never lived together, the wife has filed the present petition on 27-1-1987 for divorce. The respondent-husband filed a counter pleading no objection for the dissolution of marriage. The learned District Judge addressed himself to the question whether the marriage between the petitioner and the respondent is liable to be dissolved on the ground that the petitioner and the respondent have never cohabitated together after 29-6-1984 when the decree for judicial separation was passed. Divorce was granted by the learned District Judge on the ground that after the decree for judicial separation parties have not resumed cohabitation for more than two years. Obviously he applied the analogy under the Hindu Marriage Act, The matter has now come up before us for confirmation.

(3.) It is true that under Section 13(1)(A) of the Hindu Marriage Act 1955 as well as under Sec. 27(1)(i) of the Special Marriage Act 1954 parties to the marriage become entitled to a decree for divorce if they have not resumed cohabitation for a specified period after the passing of a decree for judicial separation. We have to decide whether the Indian Divorce Act, 1869 contains any such provision and if it does not, whether S. 7 of the Act which permits recourse to certain principles of English law to be applied in India, permits the application of current English statute law in India. .