MAGDA MARGRATE Vs. SAMUEL

JUDGEMENT

(1.) This is a reference under Sec. 17 of the Indian Divorce Act, 1869, made by the District Judge, for confirmation of the decree nisi for divorce in favour of the petitioner - wife and against the respondent - husband.

(2.) The parties are Christians and they were married on 15.7.1981 under the Indian Christian Marriage Act, 1872, in Khordehi, district Betul. Thereafter, the parties resided together at Chhindwara in the Church compound in the house of the respondent's father. They have three children through their wedlock. According to the petitioner, the respondent treated her with cruelty, used to beat and ill-treat her. He used to come drunk and assault her, after closing the door. Even when she went to her parental house, the respondent pursued her there and beat her. He also used to give her mental torture and when the third child was to be born, the respondent reached to her brother's place in Damua. But thereafter, the respondent got a search warrant issued for her appearance in the Court. He also used to write threatening letters to her father. She, therefore, prayed for dissolution of marriage. The respondent, who was served, made his appearance. but did not file any written statement. The petitioner examined herself as the sole witness in support of her petition. She was not cross- examined by the respondent, who also did not enter the witness- box. The learned District Judge, on the statement of the petitioner, that on 4.1.1986, she was beaten up and was sent to her parental house and that the respondent wrote threatening letters (Exs. P-1 and P-1). These allegations have not been denied by the respondent and, therefore, it has been held that the petitioner was treated with cruelty by the respondent. A decree nisi for divorce has been passed and the reference has been made under Sec. 17 of the Act for confirmation of the decree.

(3.) Only the petitioner was represented there. The respondent did not appear in spite of notice. A decree for. divorce can be granted under Sec. 10 of the Indian Divorce Act, at the instance of the wife on several grounds mentioned therein, including the ground of adultery, coupled with cruelty, as without adultery would have entitled her to a decree a mensaet toro. Under Sec. 22, no decree shall be made for divorce a mensaet toro, but the husband or wife may obtain a decree for judicial separation on the ground of adultery or cruelty or desertion and such decree shall have the effect of a mensa et toro and such other legal effect as mentioned hereinafter. Under Sections 24 and 25 a separated wife is deemed as spinster with respect to after-acquired property and for purposes of contract and suing. Therefore, the learned District Judge was in error in granting a decree nisi for divorce on the ground of cruelty alone. He ought to have granted a decree for judicial separation under Sec. 22. A full Bench of the Madras High Court, in Siluvaimani Vs. Thangiah (AIR 1956 Madras 421) , held that on a finding of mere cruelty wife petitioner will not be entitled to obtain a decree of dissolution of her marriage, as Sec. 10 requires, in addition to cruelty, either adultery or desertion. But under Sec. 22 of the Act, the petitioner will be entitled to a decree of judicial separation on the ground of cruelty alone. A Special Bench of the Madras High Court in D. Padmavathy Vs. Christodass (AIR 1970 Madras 188) , held that when cruelty alone is proved and not adultery, the High Court is competent under Sec. 22 to grant decree for judicial separation. A Full Bench of the Andhra Pradesh High Court, in G. Pravimala Sundari Vs. G. Premaratnam (AIR 1981 Andhra Pradesh 87) , held that a decree of judicial separation under Sec. 22, does not require confirmation by the High Court. The same is the view of the Calcutta High Court in Arun Kumar Vs. Majula (AIR 1981 Calcutta, 252) .