The U. P. amendment to S. 13 (1) (viii) of the Hindu Marriage Act requires a decree of judicial separation before a decree of divorce can be granted.

Judgment

WANCHOO, J. : This is an appeal by special leave against the judgment of the Allahabad High Court and arises in the following circumstances. A suit was brought by the first respondent, Avinash Prasad Srivastava against the appellant for dissolution of his marriage with her and the grant of a decree of divorce. In the alternative the first, respondent prayed for a decree of judicial separation. His case was that he was married to the appellant on May 27, 1955, and the appellant lived with him for four years and a half. The parties last resided together and cohabited. at Bareilly. A number of allegations of all kinds were made in the petition by the first respondent against the appellant; but it is unnecessary to refer to them, for the first respondent had to bring his case under one or other clause of S. 13 of the Hindu Marriage Act, No. 25 of 1955 (hereinafter referred to as the Act), if he wanted a decree of divorce. and under one or other clause of S. 10 if he wanted a decree of judicial separation. It is enough to say that the first respondent s case so far as the prayer for divorce was concerned was based upon Cl. (i) of S. 13 (1), namely, that the appellant was living in adultery, and in the alternative, on Cl. (viii) of S. 13 (1) read with S. 2 of the Hindu Marriage (Uttar Pradesh Sanshodhan) Adhiniyam. No. XIII of 1962. As to judicial separation, the case apparently was based on Cl. (b) of S. 10 (1), namely, that the first respondent had been treated with cruelty within the meaning of that Section, and also on Cl. (f) of S. 10 (1).

2. The appellant denied that she had been living in adultery. She also denied that she ever had sexual intercourse with Chandra Prakash Srivastava, who was made a co-respondent in the petition. She also denied that she was guilty of any cruelty as alleged. On these pleadings, two main issues arose. namely - (i) whether the appellant had been living in adultery or had sexual intercourse with Chandra Prakash Srivastava after her marriage, and (ii) whether she had treated the first respondent with such cruelty as to bring the case within Cl. (b) of S. 10 (1). There were other issues as to jurisdiction and as to some property the return of which the first respondent was claiming, but we are not concerned with them now.

3. The trial court held that the appellant was not living in adultery. It also held that it was not proved beyond doubt that there was any sexual intercourse between the appellant and Chandra Prakash Srivastava at any time. It further held that even if there had been any sexual intercourse it had been condoned. Finally it held that no such cruelty as came within the meaning of S. 10 (1) (b) had been proved. In consequence the petition was dismissed and the prayer for dissolution of marriage or in the alternative, for judicial separation, was refused.

4. The first respondent then went in appeal to the High Court. The High Court held that it had not been proved that the appellant had been living in adultery within the meaning of S. 13 (1) (i) of the Act. An attempt was made by the first respondent to prove illicit intimacy between the appellant and Chandra Prakash Srivastava in May or June 1958, but that was not believed either by the trial court or by the High Court. But the High Court relying on two letters alleged to have been written by Chandra Prakash Srivastava to the appellant held that there had been sexual intercourse between the appellant and Chandra Prakash Srivastava in 1955. The High Court also held that there was no condonation by the first respondent of this adulterous intercourse. It was therefore of opinion that the first respondent would be entitled to claim judicial separation under S. 10 (1) (f) of the Act. However, using the U. P. amendment to S. 13 (1) (viii), the High Court held that this was a case where dissolution of marriage was necessary. The appeal therefore was allowed and dissolution of marriage was granted by the High Court. It may be added that