- (1.) This is an appeal filed by Sheela Devi against the order dated January 20, 1972 of Sub Judge Ist Class Gurgaon dismissing her petition for judicial separation under section 10 of the Hindu Marriage Act, 1955 (hereinafter referred to as the Act) against her husband Piara Lal.
(2.) The facts of this case are that the marriage of Sheela Devi, appellant, with Piara Lal respondent took place on or about the year 1956 and the parties resided at Dhankot for about 15 days after their marriage. It is alleged that the respondent treated her with such cruelty that she had a reasonable apprehension that it would be harmful and injurious for her to live with him. The respondent about nine years prior to the presentation of this petition left her at Rewari at her mother's house and despite requests made by her mother and brothers to take her back to his house, the respondent did not accede to their requests on one pretext or the other and had deserted her for a period exceeding nine years. She, therefore, filed petition under section 10 of the Act for a decree of judicial separation against the respondent, Piara Lal.
(3.) The respondent admitted the factum of the marriage but denied the allegations of cruelty and desertion made in the petition. It was pleaded that the mother of the petitioner and her brothers wanted him to support them but be could not afford their expenses on account of his limited means. It is averred that the petitioner wanted that her mother should stay with her but he did not like this and hence they took her to their own house and refused to send her to his house in spite of requests. It was pleaded that previously the petitioner made a petition under section 10 of the Act on the same allegations which was dismissed as withdrawn on January 21, 1970 and therefore, this petition is not maintainable. On these pleadings of the parties the following issues were framed by the District Judge, Gurgaon on October 3, 1970 but later on he transferred this case to the Court of Subordinate Judge Ist Class, Gurgaon :- " 1. What is the effect of the previous application filed by the petitioner ? 2. Whether the respondent is willing to keep the petitioner in his house ? 3. Whether there are any grounds for granting the petition for judicial separation, as mentioned in the petition. " The Subordinate Judge held that the petition filed by the petitioner Sheela Devi on the same allegations was dismissed on January 21, 1970 and, therefore, this petition is barred in view of the provisions of Order 23, Rule 1(3) of the Code and decided issue No. 1 against her. The Subordinate Judge held that although the petitioner succeeded in showing that the respondent had deserted her but she failed to prove the plea that he treated her with cruelty. He also held that the respondent Piara Lal is willing to keep and maintain the petitioner but she has refused to accept his offer and be decided both these issues accordingly, As a result of the decision on issue No. 1, this petition was dismissed with no order as to costs. Feeling dissatisfied Sheela Devi petitioner filed this appeal alleging that the decision of the lower court is wrong and incorrect and it may be set aside and decree for judicial separation be passed in her favour against the respondent;