P. RAMAKRISHNAM RAJU, J.

( 1 ) THIS is an application filed by the wife under Section 10 of the Indian Divorce Act (hereinafter referred to as act ) seeking divorce on the ground that her husband, the first respondent, is living in adultery with the second respondent and that he treated her with cruelty, beating her and threatening to kill her. The first respondent-husband, while admitting his marriage with the petitioner on 28-6-1989, denied that he received any dowry nor treated the petitioner with any cruelty. He also further denied that he had any illicit intimacy with the second respondent. He alleges that the petitioner herself deserted him two years back. Of course, he does not oppose the petition for divorce, but rests contended by saying that because of the suspicious nature of the petitioner, he got vexed and therefore, he also prays the Court to pass a decree for divorce declaring dissolution of marriage between them. After filing the counter, he remained ex parte during the course of the trial.

( 2 ) THE second respondent in her counter-affidavit states that she is a married woman living with her husband in 257, Housing Board Colony at Rajahmundry. The allegation that when the first respondent took the petitioner after marriage to his house in Hyderabad, to her surprise and dismay, she found the second respondent living in the same house is false. She further states that all these allegations are false, vexatious and malicious.

( 3 ) THE petitioner examined herself as P. W. 1, besides examining P. W. 2, her brother; while the second respondent examined herself as R. W. 1, besides examining R. W. 2. In addition, she marked Exs. B-1 to B-6.

( 4 ) THE learned District Judge, on a consideration of the entire material on record, came to the conclusion that the petitioner failed to prove adultery muchless incestuous adultery as well as adultery, coupled with cruelty and desertion. However, he felt that the marriage tie between the petitioner and the first respondent has broken down irretrievably, and the parties have been living apart for the last more than 8 years, and as such, there is no justification to stand in the way of their seeking dissolution of the marriage, as it would be laudable for an orderly society to allow them to marry again the spouse of their choice and accordingly allowed the petition and granted a decree of divorce in favour of the petitioner against the first respondent subject to the confirmation of the High Court. This is how this case is posted before this Special Bench under Section 20 of the Act.

( 5 ) A Full Bench of this Court in YOUTH WELFARE FEDERATION represented by its Chairman, K. J. Prasad v. Union of India represented by its Secretary, Law Deptt. , New Delhi, (1996) 4 ALT 1138 (FB), felt that Section 10 of the Act is inconsistent with Article 14 of the Constitution, inasmuch as pronounced discrimination between the husband and wife who is subjected to more onerous grounds to obtain divorce than the husband, and as such, in view of the sex discrimination, the offending portions of Section 10 of the Act which are easily severable without affecting the other parts of the Section, should be removed and accordingly struck down the words "incestuous" and "adultery coupled with" occurring in Section 10 of the Act. After tailoring, as done by the Full Bench, the Section reads as follows :"10. When husband may present petition for dissolution :any husband may present a petition to the District Court or to the High Court, praying that his marriage may be dissolved on the ground that his wife has, since the solemnization thereof, been guilty of adultery. When wife may present petition for dissolu-tion :any wife may present a petition to the District Courts or to the High Court praying that her marriage may be dissolved on the ground that, since the solemnization thereof her husband has exchanged his profession of Christianity for the profession of some other religion, and gone through a form o

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