- (1.) THIS is an appeal by the wife under Section 28 of the Hindu Marriage Act from the judgment of the District Judge, Jodhnur, dated 5-6-1971, whereby the learned judge granted a decree for judicial separation in favour of the respondent-husband.
(2.) THE petition was based on the ground of cruelty of the wife towards the husband of such a nature as to cause a reasonable apprehension in the mind of the petitioner that it would be harmful or injurious for the petitioner to live with the other party. Various acts, which, according to the petitioner, amounted to cruelty so as to warrant a decree for judicial separation have been mentioned in para 70 of the petition, and Issue No. 4 was framed in this respect. It reads as under:- "4. Whether the petitioner is entitled to a decree of judicial separation on the grounds contained in para 70 of the petition?"
(3.) IN view of the conclusion to which I have come, I do not consider it necessary to narrate in detail the allegations and counter allegations of the parties, as, in my opinion, the case deserves to be remanded to the trial Court for a fresh decision. It may, however, be stated, here, that the wife also made allegation of cruelty against the respondent and in respect of that allegation a specific issue, namely issue No. 6 was framed. The learned Judge dealt with both the issues together and his findings thereunder are as follows; 1. "it has not been established by the petitioner that his wife Kaushalya rani has deserted him for a continuous period of two years or more immediately preceding the presentation of the petition. " 2. "it is proved that Smt. Kaushalya Rani voluntarily withdrew from her husband's society and cohabitation for a considerable long period since 1969. " 3. "it is not proved that Vijaysingh (petitioner) is guilty of cruelty towards his wife. " "the parties had not been living together and their marital life had ceased to exist since 6-9-1969 and that the wife was not willing to live with her husband unconditionally and hence it would not be proper to keep them within the bonds of marriage. ";