LAWS(P&H)-1978-7-28

KRISHNA WATI ALIAS KUNTI Vs. THAKUR DASS

Decided On July 18, 1978
KRISHNA WATI ALIAS KUNTI Appellant
V/S
THAKUR DASS Respondents

JUDGEMENT

(1.) Krishna Devi alias Kunti appellant and Thakur Dass respondent were married in Samvat 2028 Bk. In February, 1974, Krishna Devi filed a petition for judicial separation against her husband Thakur Dass respondent under Section 10(1)(a) and (b) of the Hindu Marriage Act, 1955 (hereinafter referred to as the Act) on the grounds of desertion and cruelty. The trial Court having decreed the suit in her favour, the respondent filed an appeal in this Court. The learned Single Judge accepted the appeal of the respondent vide order dated February 23, 1977, and held that the trial Court erred in granting the decree in favour of the appellant primarily on the ground that she had succeeded in getting maintenance from the respondent in proceedings under Section 488, Code of Criminal Procedure. It was further held that the evidence led by the appellant was not sufficient to establish desertion and cruelty on the part of the respondent. The appellant feeling aggrieved by the order of the learned Single Judge has directed the present letters patent appeal.

(2.) The sole point argued by the learned counsel for the appellant is that the learned Single Judge should have taken notice of the amendment of Section 10 of the Act, which was made in 1976, according to which the appellant was entitled to a decree for judicial separation on the ground that she had obtained an order awarding her maintenance under Section 488, Code of Criminal Procedure (old), and further there has been no cohabitation between the parties since after the passing of that order.

(3.) Section 10(1)(a) and (b), as it stood before the amendment of 1976, under which the appellant filed the petition for judicial separation, read as under :-