- (1.) Since both the matters arise out of the same proceedings and are between the same parties, as such, they have been connected and heard together and are being decided by a common order. The appellant-Smt. Preeti Aggarwal and the respondent-Mr. Vishwas Mittal are present in person before the Court. They are duly represented by their counsel. Heard Mr. Vishal Kumar Upadhyay, learned counsel for appellant as well as Mr. Anurag Shukla, learned counsel for respondent. The first appeal has been filed under Section 28 of Hindu Marriage Act against the judgment and decree dated 23.3.2011 passed in Original Suit No. 820 of 2009; Vishwas Mittal v. Smt. Priti Agarwal, whereby a decree of judicial separation has been passed by the learned Court below whereas the Cross Objection has been filed under Order XLI Rule 22 Code of Civil Procedure against the aforesaid order. Learned counsel for appellant submitted that a suit for divorce was filed under Section 13 of Hindu Marriage Act by respondent. The appellant had contested the case in the Court below. By the impugned judgment the learned Court below has passed the decree of judicial separation under Section 13-A of Hindu Marriage Act which is not sustainable in the eyes of law as no such prayer was made in the suit.
(2.) It is also submitted that no case of divorce was made out. The learned Court below has failed to appreciate that there was no sufficient evidence of mental or physical cruelty to respondent. It is submitted that the appellant is still ready to go with respondent to her matrimonial house and the findings of the learned Court below are perverse.
(3.) Learned counsel for respondent, on the other hand, submitted that the respondent is not ready to live with the appellant and there are no chances of reconciliation. The Court may fix the permanent alimony as it may deem just, fit and proper. The respondent is ready to pay the permanent alimony to the appellant. It is further submitted that the appellant and respondent both are young and in future they may decide to get re-married, as such, the decree of judicial separation may be converted into decree of divorce. In this regard, learned counsel for respondent has drawn the attention of the Court towards Section 13(1-A)(i) Hindu Marriage Act and submits that the period of one year after the date of impugned judgment has expired and there was no resumption of cohabitation between the parties as such the decree of judicial separation may be converted into decree of divorce.;