- (1.) This appeal has been filed by Smt. Santosh against the judgment and decree of the Addl. District Judge, Siras, dated 26th October, 1984, granting a decree of divorce against her on the petition of the husband.
(2.) Briefly, the facts are that the parties were married one day after Diwali in 1974. In 1980, the husband filed a petition for divorce against her. The Court instead of passing a decree for divorce, passed a decree for judicial separation on 16th August, 1982. The husband thereafter filed a petition for divorce under Section 13(1-A)(i) of the Hindu Marriage Act, 1955 (hereinafter called 'the Act') on 3rd October, 1984, on the ground that a period of more than one year had elapsed after the passing of the decree for judicial separation. The petition was contested by the wife inter alia on the ground that he had refused to rehabilitate her in the matrimonial home for the reason that he had married another lady. On the pleadings of the parties, the following issue were framed by the trial Court :- 1. Whether the petitioner is entitled to the decree of divorce on the grounds alleged ? 2. Relief. It held that after the expiry of the period of one year, the husband was entitled to a decree of divorce under Section 13 (1-A)(i) of the Act. The wife has come up in appeal against that decree to this Court.
(3.) The only question that arises for determination is as to whether the husband is entitled to a decree of divorce after a period of one year from the decree of judicial separation in spite of the fact that he refused to rehabilitate the wife in the matrimonial home. Sub-section (2) of Section 10 of the Act provides that where a decree for judicial separation has been passed, it shall no longer be obligatory for the petitioner to co-habit with the respondent. From a reading of the sub-section it is clear that the husband after the passing of the decree of judicial separation was not bound to cohabit with the appellant. Section 13(1-A)(i) authorises either of the parties to the marriage to present a petition for dissolution of marriage by a decree of divorce on the ground that after the passing of the decree for judicial separation, the parties did not resume cohabitation for a period of one year or upwards. It is not disputed that the parties did not resume cohabitation for a period of more than 1-1/2 years after the decree of judicial separation. As already held, the husband was not bound to resume cohabitation after that decree. Thus under Section 13(1-A)(i) of the Act he became entitled to file a petition for divorce on the ground that after the decree of judicial separation, there was no resumption of co-habitation between the parties for a period of one year. I am, thereafter, of the view that there is no scope for interference with the judgment ad decree of the trial Court.;