1. The petitioner applied in O. P. 12 of 1977 before the District Court, Warangal, under S. 10 of the Indian Divorce Act for divorce against the respondent. In the petition she stated that the marriage was solemnised on 11-5-1971 in the Indian Pentaowtal Church, Mill Colony, Warangal. The petitioner gave several instances when the respondent treated her with cruelty. It was stated that after an incident, which took place in the year 1973. the respondent never tried to take back the petitioner in spite of mediation by elders. The petitioner and the respondent are living in estrangement entirely due to the acts of the respondent. In the circumstances, it was stated that the respondent had treated the petitioner with utmost cruelty and had deserted her without any reasonable excuse for more than five years.
2. The respondent filed a counter denying the allegations in the petition. He stated that the petitioner had herself deserted the respondent for no fault of his.
3. The petitioner gave evidence as P. W. 1 and was cross-examined by the respondent. P.W.2 is the petitioner's mother. She also spoke to the various acts of cruelty on the part of the respondent.
4. The learned District Judge after referring to the evidence of P. Ws. 1 and 2 and observing that the respondent did not go into the witness box for the reasons best known to him held that the evidence of
P. Ws. 1 and 2 remained unchallenged and, therefore, the petition had to be allowed. He also observed that there was no collusion between the parties. In the result he passed the decree for divorce under S. 14 of the Indian Divorce Act. This matter has been placed before us for confirplation of the decree of divorce passed by the learned District Judge, Warangal.
8, We have no reason to disbelieve the evidence of P. Ws. 1 and 2. We therefore, hold that the Petitioner has proved cruelty an the part of the respondent. We are, however unable to see how a decree for dissolution of marriage can be made on that ground. Under S. 10 of the Act a wife may present a petition praying that her marriage may be dissolved on the ground that, her husband has exchanged his profession of Christianity for the profession of some other religion. and gone through a form of marriage with another woman; or has been guilty of incestuous adultery; or of bigamy with adultery or of marriage with another woman with adultery or of rape, sodomy or bestiality. or of adultery coupled with such cruelty as without adultery would have entitled her to a divorce a means at thoro; or of adultery coupled with desertion, without reasonable excuse, for two years or upwards.
It is seen from the above provisions that a wife is not entitled to ask for dissolution of marriage merely on the ground of cruelty. Section 22, however provides that a 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. The proper decree, therefore. that ought to have been passed by the leaded District Judge in the circumstances of the case was a decree for judicial separation.
6. We modify the decree by directing that the decree for divorce granted by the learned District Judge shall be substituted by a decree for judicial separation
7. In. this connection reference may be made to the decisions in Marimuthu v. Ponnammal AIR 1956 Mad 421 (FB) Ambujam G Ammal V M. R. Arumugham : AIR1966Mad153 (FB), Mrs. Dawn Henderson, D Hendersbn. : AIR1970Mad104 (SB) and D. Padmavathy v Christodass : AIR1970Mad188 (SB) where the Same view has been taken.
8. It is somewhat Strange that in the Second half of the twentieth century a Christian wife is not in a position to get a decree for dissolutian of marriage on the ground of cruelty only or adultery only. The Indian Divorce Act of 1869 was modeled on the English Matrimonial Causes Act of 1857. Whereas the law has been amended in England from time to time and the position in England today is that a decree for divorce can be granted on the ground of cruelty, the law in India under the Indian Divorced has unfortunately remained unchanged. Even the law regarding divorce among Hindus has undergone a considerable change under the Hindu Marriage Act, especially after the latest amendment in 197i6 In this connection it interesting to nigh that whereas a husband is entitled to ask for dissolution on the ground that his wife is guilty of adultery, a wife is not in a position to obtain a divorce against her husband on that ground.
She will have to prove either he is guilty of incestuous adultery or bigamy with adultery or of marriage with another common with adultery or of adultery coupled with such adultery or without adultery would have entitled her to a divorce a means et toro. It appears to us to be incongruous to allow such discriminatory provisions to remain in the Statute book after the coming into divorce of the Indian Constitution guaranteeing equal protection of laws to every citizen and prohibiting discrimination on the ground of sex It is high time that suitable amendments are made in the Indian Divorce Act which will bring it in line with enactment's like the Hindu Marriage Act. Even though a suggestion was made as far back as 1968 in S C. Selvaraj V. C. Mary. (1968) 1 Mad LJ 289 and the same was reiterated in 1970 in T M. Bashiam v. M. Victor, : AIR1970Mad12 (SB) it is surprising that no attempts have been made by the Legislature to make any suitable amendments to the Indian Divorce Act.
9. Order accordingly,