- (1.) Krishna Devi alias Kunti appellant and Thakur Dass respondent were married in Samvat 2028 Bk. In February, 1974, Krishna Devi filed a petition for judicial separation against her husband Thakur Dass respondent under Section 10(1)(a) and (b) of the Hindu Marriage Act, 1955 (hereinafter referred to as the Act) on the grounds of desertion and cruelty. The trial Court having decreed the suit in her favour, the respondent filed an appeal in this Court. The learned Single Judge accepted the appeal of the respondent vide order dated February 23, 1977, and held that the trial Court erred in granting the decree in favour of the appellant primarily on the ground that she had succeeded in getting maintenance from the respondent in proceedings under Section 488, Code of Criminal Procedure. It was further held that the evidence led by the appellant was not sufficient to establish desertion and cruelty on the part of the respondent. The appellant feeling aggrieved by the order of the learned Single Judge has directed the present letters patent appeal.
(2.) The sole point argued by the learned counsel for the appellant is that the learned Single Judge should have taken notice of the amendment of Section 10 of the Act, which was made in 1976, according to which the appellant was entitled to a decree for judicial separation on the ground that she had obtained an order awarding her maintenance under Section 488, Code of Criminal Procedure (old), and further there has been no cohabitation between the parties since after the passing of that order.
(3.) Section 10(1)(a) and (b), as it stood before the amendment of 1976, under which the appellant filed the petition for judicial separation, read as under :- "10 Judicial Separation :- (1) 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; or (b) has treated the petitioner with such cruelty as to cause a reasonable apprehension in the mind of the petitioner that it will be harmful or injurious for petitioner to live with the other party; or Section 10(1) of the Act, after the amendment of 1976, reads as under :- "10. Judicial Separation :- (1) Either party to a marriage, whether solemnized before or after commencement of this Act, may present a petition praying for a decree for judicial separation on any of the grounds specified in sub-section (1) of Section 13, and in the case of a wife also on any of grounds specified in sub-section (2) thereof, as grounds on which a petition for divorce might have been presented. The appellant could maintain a petition for judicial separation on any of the grounds contained in sub-section (2) of Section 13 of the Act. The relevant clause of sub-section (2) of Section 13 of Act is clause (iii), which reads as under :- "13(2) A wife may also present a petition for the dissolution of her marriage by a decree of divorce on the ground - (i) x x x x (ii) x x x (iii) that in a suit under Section 18 of the Hindu Adoptions and Maintenance Act, 1956, or in a proceeding under Section 125 of the Code of Criminal Procedure, 1973 (or under the corresponding Section 488 of the Code of Criminal Procedure, 1898), a decree or order, as the case may be, has been passed against the husband awarding maintenance to the wife notwithstanding that she was living apart and that since the passing such decree or order, co-habitation between the parties has not been resumed for one year or upwards; or x x x x" It is evident after the amendment of Section 10 by the Marriage Laws (Amendment) Act, 1976, the appellant could maintain a petition for judicial separation against the respondent on the ground that an order had been passed under Section 488, Code of Criminal Procedure (old), against the respondent awarding maintenance to her and that they had not cohabited for one year or upwards thereafter. The point for consideration in the present appeal, however, is whether the appellant had claimed judicial separation against the respondent on this ground. It is obvious that the relief of judicial separation by the appellant on this ground could not be claimed in February, 1974, when she filed the petition because the relevant amendment was made in 1976. The appellant in fact claimed judicial separation on the grounds of desertion and cruelty on the part of the respondent. The respondent, therefore, neither could nor did ask for the relief of judicial separation against her husband on the ground now contained in Section 13(2)(iii) of the Act.;