JUDGMENT This appeal under Section 19 of the Family Courts Act is directed against judgment and decree dated 12.1.2007 passed by the Principal Judge, Family Court, Bhagalpur in Matrimonial (Divorce) Case No.96/2001. By that judgment, the Family Court declined to pass a decree of divorce sought by the respondent, who is husband of the appellant but a decree of judicial separation was granted along with a direction to the husband to pay Rs.3,000/- per month to the appellant towards her maintenance and that of her two minor sons. Appellant has prayed for dismissal of the suit along with a decree for enhanced maintenance on the basis of figures of salary of the respondent brought on record of this appeal through different interlocutory applications. 2. The facts relevant for deciding this appeal may be noticed in brief. Marriage between the appellant and the respondent was solemnized on 7.2.1999. Leaving her parental house at Bhagalpur the appellant lived with her husband at Dumka. Soon she came in the family way and she was sent to her parental place for birth of the first child, according to the plaint as per desire of her parents. The respondent teaches in a college at Dumka and hence, he could visit the appellant only occasionally. In course of time, the respondent noticed changes in the behaviour of his wife and according to his case in the plaint, the appellant was not willing to live at Dumka and wanted the husband to seek transfer to some other place. He was allegedly subjected to misbehaviour and humiliation by the wife in public and this caused mental shock to him. Due to such developments relationship became strained and allegedly there was no cohabitation between the parties since 16.8.1999 on account of refusal by the appellant. The first issue, a son was born on 21.4.2000 at Bhagalpur. The respondent has alleged that he went to the medical clinic where child was born but the response of his wife was not good. However, ignoring all these, respondent begun to persuade the appellant to come to Dumka but the request was turned down. This caused mental harassment and agony. The respondent has claimed that his wife in collusion with her father started sending fake letters in fake names to higher authorities of the college and the university so as to humiliate him. However, ignoring all these, respondent begun to persuade the appellant to come to Dumka but the request was turned down. This caused mental harassment and agony. The respondent has claimed that his wife in collusion with her father started sending fake letters in fake names to higher authorities of the college and the university so as to humiliate him. He also alleged that she acted in cunningness and only to humiliate him and keep an eye on his family affairs, she started attending social functions with him. According to him, while she attended family functions like engagement, Tilak and marriage ceremony of his younger brother, she and her parents preferred to reside with others who were inimical to him. He also alleged to have gathered information that appellant was leading adulterous life and had extra marital relationship with other persons. In this connection he claimed a chance meeting with some persons at Bhagalpur whose talks confirmed his suspicion. 3. The suit was filed on 11.12.2001 and the second child, another son, was born on 17.8.2002. On the ground that the appellant had deserted the respondent from 16.8.1999 and there was no cohabitation since then, in course of the suit proceeding the respondent husband took the stand that he was not the father of the second child. The suit for divorce was thus based on the ground of desertion as well as alleged adultery. 4. In the written statement the appellant (respondent in the court below) denied all the allegations made in the plaint and further pleaded that just after her arrival in the matrimonial house, there was demand of Rs.five lakhs as dowry by the respondent and his family members. She has claimed that respondent himself sent her to Bhagalpur after she conceived in the month of July 1999 and all her expenses had to be borne by her parents. After the first child was born on 21.4.2000, the respondent came to the medical clinic and asked the appellant and her parents to meet the demand of Rs.five lakhs for purchase of a car and construction of building and made it clear that he would not take her to Dumka unless the money was paid. After the first child was born on 21.4.2000, the respondent came to the medical clinic and asked the appellant and her parents to meet the demand of Rs.five lakhs for purchase of a car and construction of building and made it clear that he would not take her to Dumka unless the money was paid. According to her, sometimes her husband asked her to come to Dumka for which she was always ready and he also continued to visit her at Bhagalpur where they had cohabitation and as a result, she again conceived. At that time she was at Dumka where she had come on 28.6.2000 with her son and lived till 16.9.2001. On 17.9.2001 she went back to Bhagalpur but returned to Dumka in first week of December 2001 and remained there till June 2002. Thereafter she was sent back to Bhagalpur where she gave birth to her second son on 19.8.2002. She again went to Dumka on 15.10.2002 and came back to Bhagalpur on 12.12.2002 for taking admission in Library Science. She claimed that she kept on living at Dumka at frequent intervals. Her last long stay at Dumka was from 23.11.2003. She came from there to Bhagalpur on 20.3.2004 and returned back on the same day but on 9.5.2004 her husband brought her to Bhagalpur and left her there. She has claimed that during her stay at Dumka she used to visit friends and relations of her husband in his company. According to her, during the second pregnancy she was brought to Patna for abortion but on her refusal she was brought back to Dumka and then sent to Bhagalpur where her second son was born. According to her case, she was allowed to stay at Dumka till 8.5.2004, during this period she was always pressurized to demand Rs. Five lakhs from her parents as dowry and this act of her husband caused mental torture and agony to her. 5. The learned Family Court framed as many as seven issues for trial. The material issues are issue no. 3, 4, 5 and 6 which are as follows : 3. As to whether respondent Manisha Sahay has treated applicant Sanjay Kumar Sinha with cruelty, if so, its effect? 4. As to whether respondent Manisha Sahay has been living in adultery, if so, its effect? 5. The material issues are issue no. 3, 4, 5 and 6 which are as follows : 3. As to whether respondent Manisha Sahay has treated applicant Sanjay Kumar Sinha with cruelty, if so, its effect? 4. As to whether respondent Manisha Sahay has been living in adultery, if so, its effect? 5. As to whether the second son of respondent Manisha Sahay is an illtigitimate child, if so, its effect? 6. As to whether respondent Manisha Sahay has been visiting applicant Sanjay Kumar Sinha and his family members up till 9th May 2004 when she was allegedly turned out of the in- laws place forcibly, if so, its effect? 6. The applicant husband examined 8 witnesses including himself to support his case and also some documentary evidence as Exhibit 1 series and Exhibit 2 series. On the other hand six witnesses were examined on behalf of the wife including herself. She also produced large number of letters and other documents including photograph which have been marked as Exhibit A series to Exhibit F series. 7. After considering the entire evidence in a threadbare manner the learned court below answered issue no.3 against the respondent husband. Issue no.4 and 5 have also been decided against the husband. Issue no.6 has been discussed in paragraph 7 of the judgment. On the basis of oral and other evidence the learned Principal Judge Family Court came to a conclusion that the appellant failed to prove her version that she resided with her husband at Dumka till 9th May, 2004. The court found on the basis of contradictory evidence of DWs 2, 4, and 5 that on 15.10.2002 when they along with the appellant and her two children had gone to the house of applicant Sanjay Kumar Sinha the latter and his family members did not allow Manisha Sahay and her two children to enter into the house. Thereafter, the witnesses and the appellant Manisha Sahay and her two children went to Principal of SPPG College, Dumka and then Manisha Sahay got entry into her matrimonial house but such claim was not made by DW 3, Manisha Sahay. Hence, the court held that after 25.1.2002 the appellant, Manisha Sahay had never been in her matrimonial home at Dumka. 8. Hence, the court held that after 25.1.2002 the appellant, Manisha Sahay had never been in her matrimonial home at Dumka. 8. While discussing issue no.7- as to whether applicant Sanjay Kumar Sinha was entitled to any relief claimed for, the learned Principal Judge gave a finding that the applicant had no cause of action for the suit and hence he was not entitled for any relief claimed for. Thereafter, the learned Principal Judge has observed that as per discussions in the earlier paragraphs of the judgment it has transpired that the applicant and the respondent have suspicion in their respective minds in respect of character of each other which has led to strained relationship. On the basis of that observation the learned court below came to the conclusion that “although the applicant Sanjay Kumar Sinha does not appear entitled to get any decree of divorce but applicant Sanjay Kumar Sinha appears entitled to get a decree of judicial separation because respondent Manisha Sahay has made false and frivolous allegations of torture at the hands of applicant Sanjay Kumar Sinha for demand of dowry”. 9. As already noticed, the appellant has challenged the correctness and legality of grant of a decree of judicial separation when as per findings given by the learned Principal Judge himself the respondent husband was not entitled to get any decree of divorce. The appellant has also claimed for enhancing the amount of maintenance allowed at the rate of Rs.3,000/- per month on the ground that at the relevant time the Family Court granted that amount on the basis of take home salary of Rs.8000- 9000 per month. 10. It may be usefully noted that while staying the decree of judicial separation on 21.9.2010 this Court by way of interim arrangement enhanced the maintenance amount to Rs.10,000/- per month beginning from October 2010, on account of materials on record to show that in the month of June 2008 the respondent was getting a gross salary of Rs.25,238/- and after deductions Rs.22,283 per month. Soon thereafter IA No.7266 of 2011 was filed on behalf of the appellant for further enhancement of the maintenance amount on the ground that as per salary slip of May and June 2011 the respondent was getting in hand a monthly salary of Rs.38,060/-. Soon thereafter IA No.7266 of 2011 was filed on behalf of the appellant for further enhancement of the maintenance amount on the ground that as per salary slip of May and June 2011 the respondent was getting in hand a monthly salary of Rs.38,060/-. The said IA was ordered to be considered at the time of final hearing of the appeal, as is evident from order passed in this appeal on 15.12.2011. In reply to the said IA, a counter affidavit was filed on behalf of the respondent. In paragraph 2 of the counter affidavit, the respondent has expressed a strong doubt that the second child is not his and hence, the court should order for holding a DNA test. In paragraph 8, the respondent expressed his readiness and willingness to keep the appellant honourably and respectfully as wife on the condition that she will not go away from his residence without his consent and if it becomes necessary to attend any ceremony at her mother’s place, she will travel with him and return back to his place of stay. A supplementary affidavit filed on behalf of the appellant in relation to the same IA contains as Annexure- 3 an information obtained through RTI Act that since November 2011 the net salary being paid to the respondent is Rs.50,977/- per month. The appellant has claimed enhanced maintenance on the basis of aforesaid figure of monthly salary. 11. So far as challenge to decree of judicial separation is concerned, the learned counsel for the appellant has submitted that there is no cross- appeal and the findings recorded by the Principal Judge against the respondent have attained finality. The findings do not justify grant of decree of divorce and only if the findings could justify a decree of divorce instead of awarding such a decree the court below could have awarded an alternative relief by way of a decree of judicial separation. It has been emphatically submitted that unless there could be a finding to justify decree of divorce, there can be no justification in granting a decree of judicial separation which is to be granted in lieu of the original relief for divorce only in exceptional and rare circumstances and for the ends of justice. 12. We have considered the aforesaid submission and finds sufficient merit in it. 12. We have considered the aforesaid submission and finds sufficient merit in it. Once the court below answered the issue no.3 against the husband and held that Manisha Sahay the appellant has not treated him with cruelty, it was not proper for the court below to observe that Manisha Sahay has made false and frivolous allegations of torture and only for granting decree of judicial separation. Even if Manisha Sahay did not live with the husband till 9.5.2004, as discussed by the learned lower court, that would not furnish strength to the case of the applicant husband. He had to succeed on the basis of his own case supported by evidence but as per findings, he failed to make out any case for divorce. 13. Law is clearly laid down in Section 13A of the Hindu Marriage Act that alternative relief in a divorce proceeding can be granted on some of the grounds mentioned in Sub-section (1) of Section 13 provided it is found just to do so instead of granting the relief claimed in a divorce proceeding. This power has to be exercised sparingly and rarely only to advance cause of justice, such as when from the circumstances the court finds that the marriage has not broken down irretrievably and needs to be given a chance. This is one of the illustrations where the court may exercise power under Section 13A and instead of granting a decree of divorce as asked for, may decide to grant alternative relief by way of decree for judicial separation. It would be unjust and contrary to Section 13 (1) to grant a decree of judicial separation in a case where the applicant has failed to make out any ground for grant of divorce. It is always to be kept in mind that decree of judicial separation relieves the beneficiary of such decree from the ordinary obligation to cohabit with the spouse. Such decree has great significance because under Section 13 (1A) of the Hindu Marriage Act either of the party to a marriage is entitled to seek divorce on the ground that there has been no resumption of cohabitation between the parties for a period of one year or upwards after the passing of a decree for judicial separation. Hence, grant of a decree for judicial separation requires serious deliberations because its implications are serious. 14. Hence, grant of a decree for judicial separation requires serious deliberations because its implications are serious. 14. Although efforts for amicable settlement have failed, on behalf of the respondent it was repeatedly submitted that he would be ready to keep the appellant with him along with two children if she agrees for a DNA test to prove that the respondent is father of the second child. In reply, learned counsel for the appellant submitted that finding on issue no.5 to the effect that the second son of the appellant born on 17.8.2002 is legitimate child of Sanjay Kumar Sinha, respondent, has attained finality because it has not been challenged by way of any appeal and hence, no direction should be issued for holding of DNA test for the purpose of re-ascertaining the legitimacy of the second child. 15. After considering the entire facts and circumstances and in the light of discussions made above, we find merit in the case of the appellant that in view of findings recorded by the learned Principal Judge Family Court that the respondent was not entitled to any decree of divorce and that he had no cause of action for the suit, it was not proper, just and lawful for the court below to grant a decree of judicial separation. Accordingly, the impugned judgment and decree granting judicial separation is set aside. The matrimonial suit shall accordingly stand dismissed. 16. So far as prayer for enhancement of maintenance amount is concerned, in our considered opinion, it will not be proper for this Court to enhance that amount any further when the suit of the respondent itself stands dismissed in view of success of this appeal. However, in the interest of justice, she is held entitled to receive maintenance for herself and her children at the rate of Rs.10,000/- per month for a further period of three months from today. It will be open for the appellant, in the meantime to move appropriate court to seek maintenance for herself and for her minor children in accordance with law. 17. This appeal is allowed. The appellant is held entitled to Rs.10,000/- by way of cost of this appeal.