Research › Search › Judgment

Himachal Pradesh High Court · body

2011 DIGILAW 2445 (HP)

Manish Solomon v. Anjali

2011-09-02

V.K.SHARMA

body2011
JUDGMENT : V.K. Sharma, J. The Petitioner-husband had filed a petition for dissolution of his marriage with the Respondent-wife by a decree of divorce or in the alternative for judicial separation u/s 23 of the Indian Divorce Act, 1869 (in short 'the Act') on the grounds of cruelty and desertion. The Learned Additional District Judge after having come to the conclusion vide para 23 of the judgment dated 26.12.2007, Annexure P-1, that the Respondent-wife had treated The Petitioner husband with cruelty further held vide para 24 of the judgment that since there is no provision for dissolution of marriage on the ground of cruelty under the Act, proceeded to grant the alternative relief of judicial separation to The Petitioner-husband. Paras 23 and 24 of the judgment read as under: 23. Not only this The Petitioner has been able to prove that during the period the Respondent had resided with him she had tried to insult The Petitioner and his parents on every occasion which was available to her. She had caused mental cruelty to The Petitioner by misbehaving with his mother on 2-6-2001 at the time of her silver jubilee marriage anniversary in the presence of the guests and secondly she had insulted and misbehaved with her on 14-6-2001 by slapping her in the presence of friends of The Petitioner and when the wife slaps the mother of the husband in the presence of his friends it will certainly cause mental cruelty to the husband and for that matter to any other person also. So The Petitioner has been able to prove that the Respondent has caused cruelty to The Petitioner. 24. Now the next question which arises for determination is whether due to this cruelty of the Respondent The Petitioner is entitled to a decree of divorce under Indian Divorce Act, or not? Both the ld. Counsels have frankly conceded that there is no provision under Indian Divorce Act, for divorce on the ground of cruelty. Reference can be made to Section 10 of the Indian Divorce Act, 1869. As per this Section 10, the husband can seek divorce u/s 10 only in case the wife is guilty of adultery from the solemnization of the marriage. Counsels have frankly conceded that there is no provision under Indian Divorce Act, for divorce on the ground of cruelty. Reference can be made to Section 10 of the Indian Divorce Act, 1869. As per this Section 10, the husband can seek divorce u/s 10 only in case the wife is guilty of adultery from the solemnization of the marriage. Since there is no allegations of adultery levelled by The Petitioner against the Respondent, therefore, on the ground of cruelty no divorce can be granted to The Petitioner, however, in the alternative The Petitioner is entitled to judicial separation due to this cruelty of the Respondent proved on record. So issue No. 1 is partly decided in favour of The Petitioner that in the alternative he is entitled to a decree for judicial separation and the petition for judicial separation in alternative is maintainable. Issue No. 2 is accordingly decided against the Respondent. 2. Being aggrieved, The Petitioner-husband filed a review petition before the Learned trial court which was disposed of vide judgment dated 13.01.2011, Annexure P-2, holding that since The Petitioner-husband had himself sought decree for judicial separation in the alternative and even if the main prayer for grant of a decree of divorce was declined, may be erroneously, and the judgment so passed having not been challenged by The Petitioner-husband, no ground was made for review of the aforesaid judgment dated 26.12.2007, Annexure P-1. 3. Still being aggrieved, The Petitioner-husband moved this Court by way of CMPMO No. 87 of 2011, Annexure P-3, which came to be disposed of vide order dated 24.06.2011, reserving liberty to him to seek his remedy by way of a revision petition u/s 115 of the Code of Civil Procedure. It is how The Petitioner-husband is before this Court. 4. Notice of the petition was issued to the Respondent-wife, who failed to put in appearance despite valid service and was accordingly proceeded against ex parte. 5. I have heard the Learned Counsel for The Petitioner and gone through the record. 6. The petition for divorce and in the alternative for judicial separation was filed on 16.06.2005. 4. Notice of the petition was issued to the Respondent-wife, who failed to put in appearance despite valid service and was accordingly proceeded against ex parte. 5. I have heard the Learned Counsel for The Petitioner and gone through the record. 6. The petition for divorce and in the alternative for judicial separation was filed on 16.06.2005. By that time Section 10 of the Act had already been amended by Act 51 of 2001 w.e.f. 03.01.2001, whereby the ground of cruelty for grant of divorce was also included in Section 10 of the Act as Section 10(1)(x), which reads as under: 10(1)(x) has treated The Petitioner 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 Respondent. 7. In view of the above, it is manifest that the Learned court below has failed to exercise jurisdiction vested in it, may be on account of ignorance of latest law on the subject. Consequently, the petition is allowed and the marriage between the parties is dissolved by a decree of divorce on the ground of cruelty u/s 10(1)(x) of the Act. 8. The petition stands disposed of in the above terms.