KULWANT KOUR Vs. SURJEET SINGH

JUDGEMENT

(1.) THIS appeal is directed against an order of District Judge, Jammu, dismissing the appellants application u/s 10 of the Hindu Marriage Act, hereinafter the Act, which she had brought against her husband, the respondent, for a decree for judicial separation.

(2.) INITIALLY , the appellant had brought an application under sections 10/13 of the Act with a our composite prayer for a decree for divorce, or in the alternative for a decree for judicial separation. This petition was based upon the twin ground of cruelty and adultery. In terms of Rule 10 a of the Rules made under the Act, She had also arrayed as a respondent one Saran Kour with whom according to her the respondent was committing adultery. An objection was taken on behalf of the respondent herein that as the petition had been presented within three years from the date of the marriage, and that too without seeking leave of the court in terms of Sec. 14 of the Act, the same was not maintainable. Faced with it, the appellant withdrew her application with liberty to bring a fresh one u/s 10 alone. She accordingly brought the second application basing her claim on the very same grounds and also impleaded Saran Kour as a party to it. This application was resisted by the respondent by way of preliminary objections to the effect that the appellant was not competent to claim a decree for judicial separation on the ground of adultery, that the affidavit in support of the application was not in accordance with law and that the verification of the application was not proper. This gave rise to the following three preliminary issues: 1. Whether the application in the present form is maintainable? O P. P. 2. Whether the affidavit is not in accordance with the Rules? If not what is its effect? O. P. R.

(3.) WHETHER the application is not properly verified? If so, what is its effect? O. P. R. 3 The District Judge decided Issues Nos : 2 and 3 in favour of the appellant holding that the affidavit was in accordance with the Rules and that the application too had been properly verified. So far as Issue No.: 1 was concerned, he held that adultery not being one of the ground upon which a decree for judicial separation could be claimed, the appellants application on this ground was not maintainable Thereafter, the respondent moved an application asking the court to delete the name of Saran Kaur, as according to its own order disposing of the preliminary issues, no decree for judicial separation could be passed in favour of the appellant on the ground of adultery simplicitor. This plea found favour with the District Judge who accordingly deleted her name vide his order dated 19 -4 -76. Two additional issues were then framed in the case which read as under: 1. Whether the marriage of the parties has not been consummated? O. P. P. 2. Whether the respondent has treated the petitioner with such cruelty as to cause reasonable apprehension in the mind of the petitioner that it will be harmful or injurious for the petitioner to live with the respondent ? O. P. P. 3 The parties went to the trial on these issues and led evidence on them. The District Judge, on consideration of the same, eventually came to the conclusion that the marriage had been consummated and also that the respondent had not treated the appellant with cruelty and dismissed the petition.