Alice Raju vs B.R. Anthony Raju

Jagannatha Shetty, J.—This reference is u/s 17 of the Indian Divorce Act, 1869, tor confirmation of a decree nisi for dissolution of marriage of the petitioner-wife with the respondent.

The petitioner was married to the respondent on 19/6/1963 at St. Theresa''s Church, H. M. T. Colony, Bangalore City. After the marriage, they lived at one of the quarters allotted to the petitioner''s father who was then employed at the Watch Factory at the H. M. T. Colony. On 4/4/1934 the petitioner gave birth to a male child. Thereafter they moved with the child to rented premises at Chamarajapet, Bangalore City. There the trouble started tor the petitioner. Her life became miserable due to the quixotic behaviour of the respondent who used to return home always fully drunk and beat the petitioner. Unable to bear this ill-treatment, she returned to her parents house in October, 1966. The respondent perhaps felt happy and for more than three years upto April 1970 he did not care to look at her or his child. Against this background, the petitioner was forced to file a petition u/s 10 of the Act praying for a decree for dissolution of her marriage primarily on the contention of ill-treat merit and desertion and also on a vague allegation that the respondent was spending his money on some women not known to her.

The respondent did not contest proceedings. The wife has examined herself as P. W. 1 and has also examined her mother as P. W. 2. The learned District Judge on considering this evidence, accepted the petitioner''s case both in regard to erudite and also desertion. Accordingly, be granted a decree nisi for dissolution of her marriage and referred the matter for confirmation and that is how the matter is now before us.

Though both the parties remained unrepresented before us, we had the assistance from Counsel Sri K. P. Ashok Kumar and Sri Venkatachala, who argued the matter at our request and we express our thanks to them.

Turning row to the merits of the case, it seems to us, that the reference cannot be accepted. Section 10 of the Indian Divorce Act sets out the grounds upon which the Court could dissolve a marriage. One of the grounds on which a wife could ask for dissolution of her marriage is that her husband has committed adultery coupled with such cruelty as without adultery would have entitled her to a divorce a mensa et toro. Other ground is adultery coupled with desertion, without reasonable excuse, for two years or upwards. Reference in this context may be made to Section 22 of the Act. It provides that no decree shall hereafter be made for a divorce a mensa et toro, but the husband or wife may obtain a decree of judicial separation, on the ground of adultery, or cruelty, or desertion without reasonable excuse for two years or upwards and such decree shall have the effect of a divorce a mensa et toro. The expression ''mensa et toro'' is ordinarily used to describe the position of husband or wife whereunder it would become impossible or improper for them to meet at table or at bed.

From these provisions, it is clear that a wife cannot obtain a decree for dis solution of her marriage unless she proves that her husband has committed adultery coupled with cruelty, or adultery coupled with desertion. Mere cruelty or desertion, without proof of adultery, is no ground for the Court to grant a decree for dissolution of marriage, Either of them, however, may form the basis for obtaining a decree for judicial separation u/s 22. In the present case. all that has been proved against the respondent is, that he has treated the petitioner with cruelty and laceration for 3 to 4 years. There is no evi- dence residing the adultery committed by the respondent much less any specific plea was taken in her pleadings. The vague alle allegations in the pleadings on the question of adultery cannot form the basis for granting a decree for dissolution of the marriage. The learned District Judge was, entirely in error in dissolving the marriage.

But we do not think that it is necessary for us to remit the matter or to leave the parties again to further litigation to work or their rights. The evidence in the case, in our opinion, is sufficient to hold that the respondent is guilty of having deserted his write for about 4 years front 1966 to 1970. He without reasonable excuse has not looked after his wife and the child. The evidence of the petitioner on this question remains unchallenged, and it is fully corroborated by the evidence of her mother P. W. 2. We are also satisfied that there was no collusion between the parties. The petitioner is therefore, entitled to a decree for judicial separation.

A case similar to the one before us, came up before a Special Bench of the Madras High Court in Ambujam G. Ammal Vs. M.R. Arumugham, . The learned Judges, on considering the matter, set aside the decree nisi for dissolution of the marriage of the parties therein, and granted a decree for judicial separation We think that that should be the proper relief in this case also.

iN the result, we decree the referred case only for judicial separation u/s 22 of the Act. The parties will bear their own costs.

Order accordingly.