A decree for judicial separation under Section 13A of the Hindu Marriage Act, 1955, can only be granted when the ground for divorce, which is also a ground for judicial separation, is made out.

SRIVASTAVA, J.:- This is wifes appeal against the judgment and decree dated 25-3-85 for judicial separation passed by the learn-ed District Judge, Sibsagar at Jorhat.

2. The undisputed facts are that when the petition was filed the petitioner husband, respondent in this appeal, was Principal of a College and lately has been Professor in Chemistry in Cotton College, Guahati. The opposite party, the present appellant was a Lecturer in a college and lately has been Lecturer in Physics in Assam Engineering College, Guahati. They were married on 16-10-69. They have three daughters born in the years 1971, 1973 and 1977 respectively.

3. The respondent herein had on 20-12-78 filed petition against the appellant u/S. 13(1) of the Hindu Marriage Act, 1955, hereinafter referred as the Act, for divorce on the allega-tions of abnormal character and conduct, abnormally aggressive and violent behaviour even on slightest pretext resorted to biting, frowning on the petitioner husband with weapons like fish-knife, sandle etc. and very often became unbalanced, used obscene language and created terror in the house so that not even the children could speak to her. All this made the petitioner think that she was suffering from mental disorder to such an extent that the petitioner could not live with her. The opposite party had filed false case against the petitioner. The petitioner narrated some incidents to bear out the allegations.

4. The opposite party the present appel-lant resisted the petition, denied the allega-tions and pleaded that the petitioner had ill-treated her, assaulted her even with stick, threatened to throw her out and abused her in filthy language. The opposite party made counter allegations almost matching these made by the petitioner.

5. The learned trial court held that the opposite party wife was not of unsound mind or was not suffering from mental disorder but that her behaviour and conduct was such as would justify judicial separation and accord-ingly granted decree for judicial separation.

6. Aggrieved, the wife has come in appeal and Sri S. Medhi, learned counsel appearing on her behalf has submitted that the learned trial court had not found any ground u/S. 13(1) of the Act for divorce established and hence could not grant decree for judicial separation u/S. 13A of the Act, i.e. that in a petition for divorce u/S. 13 (1) decree for judicial separation could be granted only when the ground on which divorce under S. 13(1) was sought had been established. Sri Medhi has referred to the findings of the learned trial court, which is as under:

"Upon the whole of the evidence the picture of Snigdha Chaya that emerges, to my mind, is not of a person suffering from any mental disorder or unsoundness of mind within the S. 13(1)(iii) of the Hindu Marriage Act. Haughty, stubborn, unorthodox and cruel at times she might be, but a psychopath she definitely is not. While the husband Akhil Sarma cannot at all be thought of in the bracket of Socretes, the wife Snigdha Chaya, in my opinion, also has not stopped to the level of Xantippe, that paragon of shrews. Upon all I see and hear, I am unable to hold that the wife suffers from any mental disorder within the statute. The issue has to be answered against the complainant and is answered accordingly."

and has argued that the ground for divorce not having been made out, the impugned decree cannot be sustained and should be set aside.

7. Sri B. K. Deka, learned counsel for the respondent husband has argued that divorce had been sought on the ground of cruelty also and even though the finding was that the appellant was not unsound of mind, her conduct and behaviour amounted to cruelty and the learned trial court had considered the circumstances and granted judicial separa-tion, that even though decree was made in 1985 the parties had lived separately and there was no chance of their marriage being retrieved and that therefore there should be no interference with the decree of the learned