PARVATHI ANTHARJ ANAM Vs. PARAMESWARAN NAMBOORI
HIGH COURT OF KERALA
PARVATHI ANTHARJ ANAM
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(1.) The only question arising for decision in this appeal by the wife from an order in favour of the respondent, the husband, directing judicial separation is whether the appellant had deserted the respondent for a continuous period of not less than two years immediately preceding the presentation of the petition for judicial separation. The petition was presented on 3-10-1959 and the question therefore is whether the appellant had deserted the respondent continuously from 3-10-1957. The court below has found that there has been such desertion. Counsel on behalf of the appellant contends that this conclusion is erroneous; that there has been no advertence to the provision in S.18 of the Hindu Adoptions and Maintenance Act, 1956, which enables the wife to live separately from her husband without forfeiting her claim to maintenance if the husband has any other wife living, and that further all the pleadings and evidence in the case have not been adverted or considered.
(2.) The marriage between the parties to this appeal took place in 1116 and they lived as husband and wife till 1124. As to the exact time from which they ceased to live together, there are conflicting versions given by the parties who were the only persons examined by the court below. According to the husband, the wife left in Kumbham 1124 and according to the wife, she was taken by her husband in Chingom 1124 to her father's house. Whatever that be, it is clear that from 1124 they have not lived together. The husband married again in Vrischigom 1126. There had been since then several litigations between the parties. The husband's father seems to have commenced this by filing a suit on a promissory note executed by the wife's father, it is said, as security for the payment of the dowry promised. Thereafter, the wife sued for maintenance and this has been decreed. During the pendency of this suit, the husband moved an application for custody of their only child. This was rejected and then the petition, for judicial separation followed.
(3.) We think that S.10 of the Hindu Marriage Act, 1955 under which the application has been filed for judicial separation must be read along with S.18 of the Hindu Adoptions and Maintenance Act, 1956. We shall read the relevant parts of these sections. S.10(1)(a) of the Hindu Marriage Act, 1955 is in these terms:-
"10. Judicial separation - (i) Either party to a marriage, whether solemnized before or after the commencement of this Act, may present a petition to the district court praying for a decree for judicial separation on the ground that the other party-
(a) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition;..."
There is an explanation to S.10(1) which is material, reading as under:
"Explanation. In this section, the expression 'desertion', with its grammatical variations and cognate expressions, means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the wilful neglect of the petitioner by the other party to the marriage."
And the relevant part of S.18 of the Hindu Adoptions and Maintenance Act, 1956 reads as follows:-
"18. (1) Subject to the provisions of this section, a Hindu wife, whether married before or after the commencement of this Act, shall be entitled to be maintained by her husband during her lifetime.
(2) A Hindu wife shall be entitled to live separately from her husband without forfeiting her claim to maintenance,-
(a) ... ... ... ...
(b) ... ... ... ...
(c) ... ... ... ...
(d) if he has any other wife living;
... ... ... ...";
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