When reunion or restitution of conjugal rights becomes impossible between the parties, dissolution of marriage by a decree of divorce is the only effective remedy for the welfare of the parties.

As per Hon'ble Shri T.P. Sharma, J. :-

1. The appellant has challenged legality & propriety of the judgment & decree dated 5-5-2006 passed by the Judge, Family Court, Korba in Civil Suit No. 23-A/2005, whereby the said Court has passed a decree for judicial separation in a suit filed by the respondent herein for divorce under Section 13 of the Hindu Marriage Act, 1955 (for short 'the Act').

2. The respondent has also filed cross-objection under Order 41 Rule 22 of the Code of Civil Procedure for modification of the decree of judicial separation into decree of divorce.

3. The appellant/non-applicant & the respondent/applicant are husband & wife, they are governed by the Hindu law, as such the Hindu Marriage Act, 1955.

4. The respondent herein has filed a suit for dissolution of marriage by a decree of divorce under Section 13 of the Act on the ground of physical & mental cruelty committed by the present appellant/non-applicant, before the Judge, Family Court, Korba. Marriage between the parties was solemnized on 10th of July, 2000 at Janjgir. After marriage, behaviour of the appellant/non-applicant with the respondent/applicant was not proper. The appellant used to condemn the respondent and also thereaten the respondent to send him to prison. Her behaviour was indecent. On the ground of physical & mental cruelty, the respondent filed a suit for dissolution of marriage by a decree of divorce.

5. In her reply to the suit for divorce, the appellant/non-applicant denied the allegations made in the suit.

6. On the basis of pleadings of the parties, issues were framed and after affording opportunity of adducing evidence and hearing the parties, learned Judge, Family Court decreed the suit for judicial separation in accordance with Section 13A of the Act. The appellant/non-applicant has challenged the decree on the following grounds and prayed for setting aside the impugned judgment and decree:

(1) That, the decree passed by the Court below is arbitrary, illegal and contrary to the facts and circumstances of the case.

(2) That, the Court below has committed error in holding that the respondent is liable to get decree of judicial separation under Section 10 of the Hindu Marriage Act.

(3) That, the Court below failed to see that the respondent filed an application under Section 13(1 )(i-a) of the Act, 1955, the Court below overlooked and granted judicial separation under Section 10 of the Act, 1955.

(4) That, the Court below has not properly appreciated the evidence adduced by the appellant.

(5) That, the Court below has failed to see that in support of written statement the appellant examined Mohit Ram, Mukesh Kumar Vora and Anil Sarafunder Order 18 Rule 4 of the Code of Civil Procedure.

(6) That, the court below has failed to see that the appellant had filed a suit under Section 9 of the Hindu Marriage Act, 1955 for restitution of conjugal rights.

(7) That, the Court below failed to see that the respondent admitted that in the month of October 2002 the respondent resided with the appellant at Champa and on 28/1 0/2002 the respondent filed application under Section 13 of the Act 1955. Therefore, the application filed by the respondent was pre-mature as per the provisions of the Act 1955.

(8) That, the Court below has failed to see that the appellant was willing to reside with the respondent but the Court below passed decree of judicial separation which is bad in law.

7. The respondent/applicant has also filed cross-objection under Order 41 Rule 22 of the Code of Civil Procedure for modification of the decree of judicial separation and for grant of decree of divorce on the ground that the Judge, Family Court has failed to pass a decree of divorce on the ground of cruelty on the part of the appellant/non-applicant and has committed illegality by passing a decree of judicial separation. S. We have heard learned counsel for the parties and have also perused the judgment impugned as also the record ofthe Family Court.

9. Learned counsel for the a