1. The petition for dissolution of marriage by a decree of divorce under S. 13 of the Hindu Marriage Act, 1955 (hereinafter called the Act), filed by Baldev Singh, respondent, was decreed by the Additional District Judge, Sangrur, vide her order dated September 21, 1978. The respondent wife (now appellant) has challenged the said decree is the present appeal.
2. The facts which are established and are more or less admitted, are that the marriage between the appellant and the respondent was solemnised on February 16, 1948, at village Nidhempur, Tahsil and District Sangrur. After three years of the marriage, a daughter was born. One year after, another daughter was born who, however, died shortly after, Some time thereafter, separation between the two spouses was brought about. The respondent husband filed a petition under Section 9 of the Act for restitution o! conjugal rights on January 15, 1962 which was dismissed by the senior Subordinate Judge, Sangrur, by his judgment dated Oct. 22, 1963, and a copy o! the same is Exhibit R. 2. According to the findings arrived at, it was the husband (now respondent) who had maltreated his wife and had not kept her well Further conclusion was also reached that the wife (the appellant) had, in fact, been turned out from the house by him. This order was not challenged. Thus, the finding regarding the maltreatment meted out to the appellant by the respondent has become final. The appellant filed a petition under Section 488, Cr.P.C. 1898, on Feb. 8, 1962, for maintenance for herself as well as for her daughter, This petition was allowed by the Magistrate by order dated August. 9, 1963. Rs. 30/- per mensem was allowed as maintenance to the appellant and Rs. 20/- per mensem to her daughter from the date of the application. Execution application was filed for the recovery of this amount of maintenance in 1964 by the appellant. The objections raised by the respondent were dismissed on December 24, 1965. The revision challenging the order filed by the respondent was dismissed by the District Judge on March 14, 1966 and further revision was dismissed by the High Court by order dated March 6, 1967, a certified copy of which is, Exhibit R.1, on the record. Its perusal shows that the respondent made offer in the High Court to take back the appellant to his house. The appellant accepted the offer provided one Piara Singh furnished security for her safety. According to the respondent, he had taken and Piara Singh to the appellant, but she refused to a company him. According to the appellant, neither the respondent nor said Piara Singh had ever gone to her for the purpose of reconciliation.
The learned single Judge who decided the case summoned Piara Singh for his satisfaction who denied to have ever accompanied the respondent to bring about compromise between the parties. As a consequence, the High Court came to a firm conclusion that the offer by the respondent to take the appellant back to resume matrimonial ties was not bona fide and the revision petition was dismissed. Before the final decision of the revision petition, however, the arrears of maintenance amounting to Rs. 2,900/- were paid by the respondent to the appellant. Thereafter, no initiative appears to have been taken by either of the spouses either for the recovery of the amount of maintenance or for any other purpose. It was only on October 25, 1977, that is, after about 29 years of the solemnization of the marriage and after about 15 years of the separation that the petition for the dissolution of the marriage was presented.
3. According to the averments made in para 4 of the petition, the only ground for claiming divorce was that since for a long time both the spouses were living separately, it had become quite impossible for them to live together as husband and wife. In reply to this allegation, the appellant alleged that it was the respondent who had maltreated her and turned her out of the house, Reference was also made to the order of maintenance and the order of the High Court, a copy of which is, Exhibit R. 2, in evidence however, a new case was made out by the respondent by producing Jagir Singh, P.W. 2, Hernek Singh, P.W. 3, to show that they along with the respondent had gone about ten times to village Nidhampur where the appellant was residing with her brother to make an attempt to bring her back, but she declined the o8er. The appellant in her statement expressly denied it any person had gone to her for reconciliation and it was alleged that it was the respondent who having been dissatisfied with the insufficient dowry, used to taunt her and turn her out of the house by subjecting her to beating. Corroborative evidence was also forthcoming in the statements of Natha Singh, R. W. 3 and Hardev Singh, R. W. 4, that no person on behalf of the respondent had come as a Panchayat for the purpose of reconciliation.
4. The appellant in her statement besides deposing to her version of cruelty, maltreatment by her husband and a long history of strained relations, as referred to above, made a.. categorical statement at the end in the following words:
'I have no desire to go to the house of the petitioner (now respondent) now and I will not go to him on any condition as he did not keep me with him for such a long time.'
5. From the above narration of e2nts and the assessment of evidence on record, I have no doubt in my mind that it was the respondent who was responsible for turning the appellant out of his house by maltreating her for one reason or the other and his offer even in March, 1967, during the pendency of the revision petition in the High Court to restore the matrimonial relations and to accept her back in his house was not bona fide. In the petition, there was no averment that any, Panchayat had been taken to bring the appellant back. In view of the same, the evidence of the respondent that he along with some witnesses had gone to the house of the appellant for compromise or reconciliation cannot be given any credence.
6. However, in spite of the conclusion that it was the respondent who was at fault and that the appellant had not left the house of the respondent voluntarily, we are faced with an unfortunate situation when both the spouses have taken a categorical stand that the resumption of the matrimonial ties and the joint living as husband and wife is not possible. As the appellant cannot be held guilty of desertion, the respondent was not entitled to the decree of divorce and the same passed by the trial Court cannot be sustained. But the question still remains as to what is in the best, interest of both the parties in view of the long history of separation and discontinuance of the matrimonial relationship. In my considered opinion, Section 13A of the Act, which has been introduced by the Marriage Laws Amendment Act, 1976, is intended to meet such a situation.. The same is reproduced below:
'13A. Alternate relief in divorce proceedings:--In any proceeding under this Act, on a petition for dissolution of marriage by a decree of divorce, except in so far as the petition is founded on the grounds mentioned in clauses (ii), (iv) and (vii) of sub-section (1) of Section 13, the Court may, ii it considers it just so to do having regard to the circumstances of the case, pass instead a decree for judicial separation.'
7. In view of the conduct of the respondent, he is not entitled to the decree of divorce in the present petition, nor are there any reasonable prospects of immediate reconciliation or compromise between the parties. In these circumstances, the only just solution will be to pass a decree for judicial separation as envisaged under Section 13A of the Act, referred to above. It can only be hoped that the decree for judicial separation may provide last opportunity to both the spouses and their well-wishers to make an attempt for reconciliation even after 17 years of separation.
8. It was contended by the learned counsel for the appellant, that the petition for divorce was filed after an unexplained delay of a number of years and as such, it was not maintainable under Section 23(1)(d) of the Act. This contention is not tenable as the petition for divorce is being dismissed, but a decree of judicial separation is being passed under Section 13A of the Act. Hence the question of delay in filing the petition for divorce has no relevance.
9. It was then contended that the order of maintenance under Section 488 Cr.P.C. 1898, was passed in favour of the appellant and her daughter by the Magistrate on August 9, 1963, and all objections during execution of the said order were dismissed finally by the High Court on March 6, 1967, (copy, Exhibit R. 1). This order of maintenance may not in any manner be adversely affected by the decree of judicial separation. It is made clear in order to avoid all controversy, that the decree o judicial separation passed by this order will not stand in the way of the executability of the above referred order of maintenance.
10. The consequence is that the decree of divorce passed, by the trial Court is set aside and a decree for judicial separation is passed. The appeal is disposed of accordingly with no order as to costs.
11. Order accordingly.