PURSHOTAM KEWALIA Vs. DEVKI

JUDGEMENT

(1.) THIS is a husband's appeal directed against the judgment of the learned District judge, Bikaner dated 25-2-1970 whereby the learned Judge dis-missed the husband's application under Section 10 of the Hindu Marriage Act, 1955, hereinafter to be referred as the "act", for judicial separation and while dismissing the application the learned Judge awarded an amount of Rs. 40/- per month as permanent maintenance to the wife under Section 25 of the Act.

(2.) THE appellant Purshotam Kewalia and Smt. Devki respondent were married according to Hindu rites in July, 1937. At that tune they were both children, while the husband was 15, the wife was 10 years of age. According to the husband, the wife started living with the husband's parents at Jaisalmer and at that time the husband's relatives came to know that the wife was mentally deranged and was of violent nature. Then the wife had left her in-laws some two or three days thereafter without informing anyone and for no cause. The wife never returned to her husband and there was no cohabitation between the couple at any time. The husband proceeded to state that he continued to make efforts to fetch his wife, but the wife did not show her willingness to return. According to the husband, the wife did not even communicate with him for almost 22 years and he even did not know whether she was dead or alive. In August, 1967, however, the wife's brother took her to the husband's mother in the absence of the husband and the husband's mother was pressed to keep Devki with her, but the husband's mother expressed her inability to do so, as she was not knowing how Smt. Devki had lived for as many as 22 years since her separation from the husband. Then Smt. Devki started liv- ing in a rented house near the house of the husband's mother. It was in these circumstances that the husband applied for judicial separation against the wife. The main ground taken by him was desertion for a continuous period exceeding two years before the presentation of the application. The learned district Judge recorded evidence of the parties and came to the conclusion that the wife has not been shown to be in desertion, In the result, he dismissed the husband's application for judicial separation, but at the same time award-ed permanent maintenance to the wife at the rate of Rs. 40/- per month.

(3.) LEARNED counsel for the appel-lant has raised a twofold contention. In the first place, he argued that the husband has been successful in showing that the wife had been in desertion for a continuous period of more than two years preceding the filing of the application. In the second place, he submitted that the learned district Judge had no juris--diction to award permanent maintenance to the wife under Section 25 of the Act once he had dismissed the application for judicial separation.