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Judgment
(1) This appeal is directed against the judgment dated March 26, 1974, of the learned Addl. District Judge, Jammu; whereby he dismissed the
application brought by the appellant herein for divorce under section 13 (I) (viii) of the Hindu Marriage Act, 1955 (Act No : VIII of 1955)
hereinafter referred to as Act.
(2) It appears that the respondent herein obtained t decree for judicial separation from the court of the District Judge, Jammu, on May 20, 1971,
against the appellant on the ground that the latter had been guilty of desertion and cruelty as contemplated by clause (a) and (b) of subsection 10 of the Act. On December 29, 1972 the appellant made the aforesaid application praying that since the respondent had not resumed cohabitation for a period of two years after the passing of the aforesaid decree for judicial separation in spite of several attempts made by him, a decree for divorce dissolving the marriage be passed in his favour.
(3) On appearing before the court in response to the notice given by it, the respondent took a preliminary objection regarding the maintainability of
the aforesaid application. Her contention in substance was that clause (viii) of subsection (I) of section 13 of the Act can be availed of by that spouse alone at whose instance a decree for judicial separation has been passed and since in the instant case the decree was passed at her
instance, the application was not tenable. The plea raised by the respondent found favour with the learned Additional District Judge, Jammu who dismissed the application as stated above.
(4) Appearing in support of the appeal Mr. Gupta has strenuously urged that a decree for judicial separation can be availed of by either spouse
and if the cohabitation is not resumed for a period of two years or up wards after the passing of the decree, any one of the spouses can come forward and pray for a decree for divorce under section 13 of the Act.
(5) We are afraid we cannot accede to this contention. The phraseology of clause (viii,) of subsection (1) of section 13 of the Act is clear. The
words 'against that party' occurring herein leave no room for doubt that it is only the injured spouse who has obtained the decree for judicial separation i. e, at whose instance a decree for judicial separation has been passed, that can make an application under the said clause of section 13
(1) of the Act. If the intention of the legislature had been that either party can avail of the decree it would have said so in clear terms. We are
fortified in our view by the decision of the Punjab High Court in Shri waryam Singh v. Shrimati Pritpal Kaur. AIR 1961 Punjab, 320 where it was
held as follows:
The argument that there is no justification either in principle or logic to make a distinction between the two spouses after a decree for judicial separation has been passed over looks altogether the essential nature of decrees which tend to break loose the marriage ties. It is well to remember that the marriage under many systems of jurisprudence was a sacred union and it is only lately that a divorce or a judicial separation has received the section of law. A decree for judicial separation or dissolution of marriage is not to be likely granted and it is only in cases of specified matrimonial wrongs or other natural infirmities that the innocent party may be accorded the discretionary relief which is provided under the Hindu
Marriage Act.
(6) Under section 10 either party to a marriage may seek decree for the judicial separation on the ground that the other party his deserted the
petitioner for a period of not less than two years, or has treated the petitioner with cruelty or similar lapses. A decree for judicial separation can only be granted at the instance of an innocent party and against the spouse who has been guilty of the matrimonial wrongs mentioned in section 10,
Likewise' a decree for dissolution of marriage under section 13 may be granted and again to an innocent party if the other spouse is living in adultery or because of some other infirmity in him or her for which the petitioner cannot be said to be at fault.
(7) D. F. Mulla, in his commentary on the Hindu Marriage Act at page 853 of the 12th edition of the Principles of Hindu law, states the matter
thus:
''At the same time the view seems to have been taken that the injured or innocent spouse who has obtained a decree for judicial separation should have the right to seek dissolution of the marriage by a decree of divorce where the parties have not resumed cohabitation for a period of two years or more after the passing of such decree.
This conclusion of the learned author, in my opinion is clearly in consonance with the principles governing matrimonial jurisdiction of divorce courts both here and in England. It would be indeed strange if a husband who has no independent right of his own to ask for dissolution of marriage under section 13 is permitted to seek the umbrage of a decree for judicial separation obtained by his wife against him. It is to be borne in mind that only one of the two parties is given a right to ask for divorce under clause (viii) on ground of judicial separation and in the present instance that party is the wife in whose favour a decree for judicial separation was granted and who in other words, is the innocent party.
(8) Under subsection (1) of section 13 of the Hindu Marriage Act, the husband or the wife can bring a petition on the ground that ''the other party
(and these words are important) has not resumed cohabitation for a period of two years after the passing of a decree for judicial separation against
that party. The words "the other party" in sub section 1 and "against the party" in clause (viii), in my mind provide a key to the construction of this
provision and these clearly exclude the right of one of the spouses, namely the party against whom the decree has been granted to claim the protection of a divorce court for a decree for dissolution of marriage
X X X X
Neither the plain language of section 13 nor the principles of Divorce Law could justify the conclusion that a husband, who is the guilty party in the present cause, can obtain a decree for dissolution of marriage because his own wrong was found sufficient to entitle his the wife in 1958 to obtain a decree for judicial separation. It would be singularly inappropriate to record the same judicial status to a decree obtained under the Divorce
Jurisdiction of a court as an ordinary decree which in some situations may afford further relief to all the parties to it on its basis. The decree for judicial separation is of a personal nature and ensures only for the benefit of the party in whose favour it is granted as it clearly specified in section
13 itself.
(9) It will not be out of place to mention that section 13 of the Hindu Marriage Act, Act, No. 25 of 1955 (Central Act) was amended by the Hindu
Marriage Amendment Act. Act; No. 44 of ,1964, By virtue of the Amendment Act a new clause in the form of clause (1) of subsection (IA) was inserted in place of the original clause (VIII) of subsection (1) in section 13 enabling either spouses to take advantage of the decree for judicial separation and apply for a decree dissolving the marriage if no cohabitation has taken place between the spouses for a period of two years or more after passing of a decree for judicial separation
(10) This amendment has not been adapted by the State Legislature with the result that clause (viii) of subsection (1) of section 13 of the Act
operates in its full glory and relief by way of divorce on the ground mentioned therein can be bad only by a husband or wife who had obtained a decree for judicial separation and not by the other spouse.
(11) For the foregoing reasons we find ourselves unable to interfere with the judgment and decree passed by the court below. In the result the
appeal fails and is hereby dismissed but in the circumstances of the case without any order as to costs.