SACHI SAHOO Vs. EKADASIA SAHOO

JUDGEMENT

(1.) DECREE for judicial separation at the instance of the husband is the grievance of the wife in this appeal under Section 28 of the Hindu Marriage Act, 1955 (hereinafter referred to as 'the Act').

(2.) ON the finding that the wife had no just cause to desert the husband, trial Court has passed the decree for judicial separation although the husband prayed for divorce, restitution of conjugal right or judicial separation, as the case may be. Husband has been satisfied with the decree for judicial separation.

(3.) CASE of the husband is that wife left his house in the morning of 3 -10 -1980 with the ornaments and did not come back inspite of being called and even did not give reply to the registered notice. Wife's case is that her husband along with his grand father left her in her father's house in the month of September, 1979 and declared that they were finally leaving her there and would no more take her back. Both parties have not been able to prove their respective cases. From evidence of the husband examined as PW 3, it is clear that when he went for treatment to Burla, his wife was in their house but by the time he returned she had left. This is also the statement of PW 1 who is independently related to both parties Discharge certificate (Ext. l) of Burla hospital is dated 19 -4 -1983. Thus, near about that period wife left the house of her husband. Petition with prayer for judicial separation having been filed on 26 -5 -1983, separate living is not for a period of two years continuously and accordingly, the requirement of Section 13(1)(ib) of the Act is not satisfied for a decree of judicial separation under Section 10 of the Act. Trial Court has not considered this question while passing decree of judicial separation.