Divorce can be sought on the grounds of cruelty and desertion under Section 10 of the Indian Divorce Act, 1869, contrary to the trial court's interpretation that only adultery was valid.

JUDGMENT :

Ravi Nath Tilhari, J.

1. Heard Sri S.Lakshminarayana Reddy, learned counsel for the appellant and Sri Nagaraju Naguru, learned counsel for the respondent.

2. This appeal has been filed by the appellant/husband, challenging the dismissal of the petition for divorce under Section 10 of the Indian DIVORCE ACT ,1869 (in short „the Act‟) by order, dated 17.04.2008 passed in D.O.P.No.349 of 2004 on the file of the Principal District Judge, Kadapa.

3. The appellant/husband filed D.O.P.No.349 of 2004 under Section 10 of the Act seeking dissolution of marriage, which was performed on 17.08.1998 at Pulivendula, as per Christian customs.

4. The respondent/wife filed counter denying the main averments, on which ground the divorce was sought.

5. The learned Judge dismissed the aforesaid petition, pointing out, at paragraph 7 of the order that, the application was made under Section 10 of the Indian DIVORCE ACT , under which divorce could be granted only on the ground of “adultery of wife”. No such ground was raised by the appellant/husband and as such, the divorce could not be granted, on the grounds raised of cruelty or desertion. The learned Court dismissed the petition only on the said reason assigned in the order.

6. Learned counsel for the appellant submits that there are specific grounds of „cruelty‟ and „desertion‟ under Section 10 (1)(ix)(x) of the Act respectively for divorce. Section 10 of the Act was substituted by Act No.51 of 2001 from 3.10.2001. The petition for divorce was filed in the year 2004. Those grounds of „cruelty‟ and „desertion‟ were available to the appellant. But, the appellant‟s case of „desertion‟ and „cruelty‟ has not been considered and no findings have been recorded by the learned Court, under misconception of the legal provisions.

7. We have considered the aforesaid submissions and perused the material on record.

8. Now the point that arises for determination is :-

“Whether divorce can be sought on the ground of ‘cruelty’ or/and ‘desertion’ under Section 10 of the Indian DIVORCE ACT or only on the ground of adultery ?

9. Section 10 of the Indian DIVORCE ACT reads as under :-

“10. Grounds for dissolution of marriage.—(1) Any marriage solemnized, whether before or after the commencement of the Indian Divorce (Amendment) Act, 2001 (51 of 2001), may, on a petition presented to the District Court either by the husband or the wife, be dissolved on the ground that since the solemnization of the marriage, the respondent-

(i) has committed adultery; or

(ii) has ceased to be Christian by conversion to another religion; or

(iii) has been incurably of unsound mind for a continuous period of not less than two years immediately preceding the presentation of the petition; or „

[(iv) x x x x]

(v) has, for a period of not less than two years immediately preceding the presentation of the petition, been suffering from venereal disease in a communicable form; or

(vi) has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of the respondent if the respondent had been alive; or

(vii) has willfully refused to consummate the marriage and the marriage has not therefore been consummated ; or

(viii) has failed to comply with a decree for restitution of conjugal rights for a period of two years or upwards after the passing of the decree against the respondent; or

(ix) has deserted the petitioner for at least two years immediately preceding the presentation of the petition; or

(x) has treated the petitioner with such cruelty as to cause a reasonable apprehension in th