GURMAIL KAUR Vs. PRITAM SINGH

JUDGEMENT

(1.) Gurmail Kaur has filed this appeal against the judgment dated October 10, 1977, passed by the Additional District Judge, Sangrur, whereby her petition against her husband Pritam Singh under section 13 of the Hindu Marriage Act for obtaining dissolution of marriage by a decree of divorce had been dismissed. The appellant had claimed the relief on two grounds, namely, desertion and cruelty. Both these grounds were held to be not proved by the lower Court.

(2.) The appellant had previously obtained an ex parte decree for judicial separation against the respondent on March 25, 1977. The petition in that connection had been filed by the appellant on May 13, 1975. It was urged by the learned counsel for the appellant that desertion on the part of the respondent having been proved in the previous petition it was not open to the learned Additional District Judge to disregard that finding which was between the same parties and hence desertion should be taken to be proved in the present case thereby entitling the appellant to the decree prayed for in view of this amendment effect in the Hindu Marriage Act that a desertion for a period of two years was sufficient for the grant of divorce. There is some force in this argument but still it is discretionary with the Court either to grant divorce or simply decree for judicial separation on the ground of desertion extending for a period of over two years.

(3.) The marriage between the parties took place in the month of June, 1974. In the previous proceedings there was an order for the payment of maintenance pendente lite and the respondent being unwilling to pay the required amount absented himself and under these circumstances an ex parte decree for judicial separation was passed against him by the Subordinate Judge First Class, Dhuri, as appearing from a copy of the judgment, Exhibit P-2. A perusal of that judgment, however, shows that it was on the proof of the ground of cruelty that the decree for judicial separation was granted. The judgment further shows that the desertion had not at all been pleaded. That decree can, however, be still helpfull to the appellant, because one of the issue framed in the present petition also relates to cruelty. In view of the provisions contained in section 13-A of the Hindu Marriage Act it is still discretionary with the Court whether to grant a decree for divorce even on proof of cruelty. The said section says that the Court may, if it considers it just to do so having regard the circumstances of the case instead of a decree of divorce, pass a decree for judicial separation.