C.M. Lodha, J.
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.'
4. '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.'
4. Learned counsel for the appellant has inter alia taken serious objection to the last finding on which the learned District Judge has turned the scales in favour of the petitioner and has granted decree for judicial separation. It is contended that the fact that the parties had not lived together for some period admittedly less than two years preceding the date of the presentation of the petition cannot be treated as cruelty on the ground that the marital relations between the parties had ceased to exist. I may observe straightway that the contention is not without force. This finding cuts across the finding given by the learned Judge earlier that desertion by the wife for a period of less than two years immediately preceding the date of the presentation of the petition, cannot be a ground for judicial separation. There must be something more apart from the spouses not living together to warrant an inference that one is cruel to the other. It was not the intention of the legislature that desertion by one party for a period of less than two years immediately preceding the presentation of the petition may by itself be considered as an act of cruelty. That would render Clause (a) completely nugatory. The learned Judge has not pointed out any other acts on the part of the wife apart from her not living with the husband to show that she treated the petitioner-husband with such cruelty 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. He has no doubt referred to Avinash Prasad v. Chandra Mohini, AIR 1964 All 486 in support of the conclusion to which he has come. It pains me to point out that an overruled authority has been relied upon by the learned District Judge. In fact this judgment was reversed by the Supreme Court in Chandra Mohini v. Avinash Prasad, AIR 1967 SC 581, and apart from that, the observations relied upon have been made in altogether a different set of circumstances where the desertion was for a period for more than two years immediately preceding the presentation of the petition. The view taken by the learned District Judge, therefore, cannot be sustained. Consequently the decree for judicial separation granted by him must fail. However, it has been urged by Mr. Hukam Chand Jain, learned counsel for the petitioner husband that the allegations contained in para 70 of the petition have been duly verified and they constitute evidence as provided under Section 20 of the Hindu Marriage Act and as such ought to have been considered by the Court below. It has been also urged that the petitioner-husband has led evidence in support of the allegations of cruelty but the learned Judge, failed to apply his mind to this evidence. This contention is correct. Even the learned counsel for the appellant candidly conceded that the evidence led by both the parties as to the acts of cruelty alleged by the petitioner-husband has not been considered by the learned District Judge at all, though it is also his contention that those allegations cannot in law amount to cruelty as contemplated by Section 10(1)(b) of the Hindu Marriage Act. Now, therefore, two courses are open to this Court, either to remand the case to the lower Court for dealing properly with the evidence led by the parties on the point of the alleged cruelty by the wife, or to deal with the matter here.
5. In the circumstances of the case I deem it proper that the parties should have an opportunity to canvass this matter in the first instance before the trial Court as there is good deal of evidence to be dealt with and also points of law involved for the purpose of drawing inference from the facts proved either way. There is yet another reason, for adopting that course, I gave time to the learned Counsel to bring the parties together but after having made an effort in this direction learned counsel submitted that at present the feelings between the parties are running high and in their view if some more time was granted, probably passions may cool down, and it may be possible for them to come to terms and resume their marital relations. A remand, therefore, would provide such an opportunity to the parties. This is the additional reason which has prevailed with me to order a remand rather than to decide the case finally here by dealing with the whole evidence and the points of law involved. Learned counsel for the parties are also agreed that a remand in the circumstances of the case would be the proper course to be adopted.
6. Accordingly, I partially allow this appeal, set aside the judgment and decree of the Court below and send the case back to the Trial Court for a fresh decision on the lines indicated above. There will be no order as to costs. It will be open to the Court below to deal with all the points and issues afresh. Let the record of the case be sent back to the Trial Court immediately. The parties are directed to appear before it on 20-4-73.