Deoki Nandan, J.
1. This is a husband's second appeal in a suit for dissolution of his marriage with the respondent, by a decree of divorce and in the alternative for judicial separation.
2. The appellant is captain now a major in the army. His case was that the parties were married on 26-4-1959 when he was about 17 years of age and the respondent was only 14. They lived and cohabited together at their village home where they last resided together upto 10-10-1969. The respondent wife is then described as short-tempered who sometimes becomes violent and who is said to use abusive language. She was alleged to be shortstatured and hard of hearing. It was then said that one day the respondent wife hurled a Belen and used to beat his nephews and abused the petitioner's mother as also his brother's wife. This is followed by the complaint that the respondent wife falsely accused the husband of 'complicity with his Bhabhi who is about 18 years older than him' and has 8 issues, the eldest of them being 27 years old and whom petitioner 'respects like his mother.' The husband had to suffer indignity and humiliation before his family and neighbours. His life became Very miserable so that 'he became impotent towards her'. This is followed by the allegation that 'he could not associate with her in the advanced society to which the petitioner belongs as a commissioned officer of Indian army.' Lastly' he alleged that the respondent wife collected people, defamed the petitioner and ultimately left the petitioner's house and went to her father's house in or about Febuary 1970 and had not returned to the petitioner thereafter. A son was said to have been born on 12-5-1970, but died ten days thereafter on 22-5-1970. On these facts, the husband alleged that the respondent wife had 'deserted the petitioner now for 5 years'; that 'she has treated the petitioner with such cruelty as to cause reasonable apprehension in the mind of petitioner that it will be harmful and injurious for the petitioner to live with her'; and that 'she had almost disrupted the joint family life of the petitioner with his parents, brother and his sons and has thus caused incalculable mental torture to petitioner'. A petition for divorce was said to have been filed by the husband on 11-10-1969 on which an ex parte decree for divorce was passed on 23-4-1970, but was set aside and thereafter the suit was dismissed for default of parties on 14-2-1974. The petitioner Stated that he came to know about it only a few days before from leave (sic).
3. Having stated the facts narrated in the petition, I must observe that even if all the facts that the petitioner has stated were accepted at their face, no case, whether of cruelty or desertion, could be said to be made out against the respondent and the petition was liable to the dismissed. Be that as it may, the respondent filed a written statement and the matter went to trial on the following issues :--
'1. Whether cruelty was committed by the respondent on the petitioner ?
2. Whether the respondent malignantly blamed the petitioner to have illicit relations with his Bhabhi and thus brought him to disrepute, if so its effect ?
3. Whether the petitioner has become impotent towards her on account of her continuous maltreatment?
4. To what relief, if any, is the petitioner entitled ?
5. Whether the respondent has deserted the petitioner without any reasonable and probable cause ?'
4. On an appraisal of the evidence, the trial court found on issue No. 1 that the respondent is not guilty of having committed cruelty or of such conduct as to give rise to an apprehension in the petitioner's mind that co-habitation with her would be injurious or harmful; on issue No. 2, that a false charge of adultery was made by the respondent against the petitioner which caused him mental agony and that amounted to cruelty within the meaning of Section 10(1)(b); on issue No. 3, that the petitioner was not impotent and was capable of sexual intercourse with the respondent when she left the village in October, 1969 or thereafter on issue No. 5. that the petitioner himself was to be claimed 'for causing desertion of the respondent and accordingly..... the respondent is not at all guilty of desertion'; and on issue No. 4, that in view of the findings arrived at on issue No. 2 the petitioner was entitled to a decree for judicial separation, as no ground for dissolution of the marriage by divorce had been made out. In the result, the learned Civil Judge who tried the case originally, passed a decree for judicial separation but at the same time awarded a sum of Rs. 190/- per month as maintenance allowance to the respondent during the statutory period of judicial separation.'
5. On appeal by the respondent wife the lower appellate court corrected the errors into which the trial court fell and set aside its judgment, and dismissed the petition in its entirety. The lower appellate court held that the petitioner husband was residing 'in such an atmosphere where false charge of unchastity' of women members of the family was not unknown and that 'in view of the proved habits of the petitioner the false charge of unchastity between him and his wife does not constitute such cruelty so as to warrant a decree of judicial separation.' The lower appellate court further held that the charge made by the wife against the husband had been condoned by the latter, and lastly that even if the wife's charge against the husband of adultery between him and his Bhabhi was false, that did not amount to cruelty.
6. The question of law on which notice was issued by the Court after hearing under Order 41. Rule 11 C.P.C., was :--
'Whether the fact that the respondent consistently accused the appellant of having illicit relations with his sister-in-law amounted to 'cruelty' within the meaning of Section 10 of the Hindu Marriage Act.'
This case had been before me off and on for some months now. One of the reasons was that no notice was taken of the amendments made in the Hindu Marriage Act by the Matrimonial Laws (Amendment) Act, 1976 either in the trial court or in the lower appellate court, nor even in this Court when the appeal was heard under Order 41, Rule 11 C.P.C. The amendments made are retrospective and Section 39 of the Amendment Act required that the court should give the parties an opportunity to amend their pleadings in the light of the amendments made in the Hindu Marriage Act. I gave that opportunity to the parties. An application dated 19-10-1980 for amendment was consequently made. That was rejected by my order dated 14-11-1980 as 'plainly misconceived'. I gave the petitioner-appellant another opportunity to make a proper application. An application dated 12-11-1980 was made for expenses of the appeal on which notice was issued to the husband for filing objections. Efforts were also made to have the parties before me. The husband appeared on a few occasions, but the wife persistently refrained from appearing in Court, and from her attitude it was clear that marriage tie at any costs, even at the cost of having to live as a grass widow at her parents' house for the rest of her life.
7. Another application for amendment of the petition was made on 18-11-1980. In the meanwhile, repeated attempts were made to enable the wife to appear in Court to bring about a settlement between the the parties, but they failed.
8. The application for amendment of the petition, which was filed on 18-11-1980, is also wholly misconceived. By the proposed amendment, a divorce is sought on the ground that a period of more than one year had elapsed between the decree of judicial separation granted by the trial court and the decree of the lower appellate court, whereby it was set aside. The petitioner has purported to base the plea on Sub-section (1-A) of Section 13 of the Hindu Marriage Act, as amended by the Matrimonial Laws (Amendment) Act 1976, which reduced the period of waiting from two years to one year. The ground for divorce, prescribed thereby, is that there has been no resumption of cohabitation as between the parties to the marriage for a period of one year or upwards after the passing of the decree for judicial separation in a proceeding to which they were parties. The decree for judicial separation, which could be the basis for divorce, must be a subsisting decree, even if it is assumed that where a decree of judicial separation has been passed by the trial court and confirmed by the appellate court or courts it is the date of the decree of the trial court from which the period of one year is to be reckoned, unless of course, the operation of the decree was stayed by the appellate court. In the present case, the decree for judicial separation, that was passed by the trial court, was get aside by the lower appellate court. There was no decree for judicial separation when the application for amendment of the original petition was made and none at all when the original petition was filed. Indeed, the relief of dissolution of marriage by a decree of divorce specified by either of the Clauses (i). (ii) of Sub-section (1-A) of Section 13 cannot be obtained in the same proceedings in which the decree for judicial separation or restitution of conjugal rights has been passed. A fresh suit has to be instituted for obtaining relief on either of the said grounds after the decree for judicial separation or for restitution of conjugal rights has become final in an earlier proceeding. It was for these reasons that before proceeding on to hear the appeal on merits. I had indicated to the counsel for the parties that the application dated 18-11-1980, for amendment of the petition, would be dismissed.
9. The application under Section 24 of the Hindu Marriage Act, that had been filed by the wife for a direction to pay her the sum of Rs. 3,000/- towards the expenses of the appeal on 12-11-1980, was pending when the hearing commenced, after a counter-affidavit had been filed in that application on 18-11-1980, I had permitted the respondent wife to file a rejoinder affidavit by 18-12-1980, to which date the hearing of the appeal was adjourned. Some money was thereafter paid or sent to the wife in order to enable her to appear in Court. But, as indicated above, she avoided appearing in Court on one pretext or the other and instead sent letters by post which showed that she was receiving a sum of Rs. 185/- per month through court, obviously under the decree that had been passed by the trial court. Mr. V. K. Gupta, learned counsel, who was appearing for the respondent wife in this Court, did not express his inability to continue appearing for her or in pleading her case for any want of instructions. Under the circumstances, I did not consider it proper to further adjourn the hearing of the appeal on merits in order to put the respondent wife into funds for contesting it, as the doing so appeared to be unnecessary. As regards the costs incurred by the wife so far, they shall obviously abide the result. It was for these reasons that I had indicated to the parties' learned counsel that application would also be rejected.
10. Having heard learned counsel for the parties on the merits of the appeal, I find that it has none. I have already recited in some detail the allegations made by the husband in his original petition and even indicated that even if all the facts, stated by the petitioner in his original petition, were accepted on their face, no case whether of cruelty or desertion, for judicial separation or divorce could be said to be made out against the respondent. The lower appellate court has recited certain statements, made by the respondent wife in her written statement, while discussing the point whether the allegations made by the wife regarding the husband's intimacy with his Bhabhi are false and whether they amount to cruelty in law. Now, I must observe, at the very outset, that a fact in order to afford a cause of action for any relief, must precede the initiation of the action. Consequently any allegation made by the wife in her written statement could afford no cause of action for any relief on the husband's petition. Therefore, I do not think that the statements, made by the wife in her written statement, could afford any ground for granting relief to the husband in the present case and need not have been discussed by the lower appellate court. With regard to the facts preceding the presentation of the petition, I agree with the finding reached on assessment of the evidence by the lower appellate court that none of them could amount to cruelty and at any rate, the allegation of illicit relations between the husband and his Bhabhi, which is said to have been hurled by the wife at him, must be deemed to have been condoned by the co-habitation between the husband and the wife in the year 1969, which resulted in the birth of a child on or about 12-5-1970, after which the parties did not live together.
11. As to desertion, the point does not seem to have been raised before the lower appellate court, obviously because the finding of the trial court on this point was in favour of the wife.
12. The appeal fails and is dismissed with costs.