A wife is entitled to separate maintenance and judicial separation if the husband is guilty of cruelty and adultery.

JUDGMENT :- This is an appeal by the petitioner in the court below who applied under S. 10(1) of the Hindu Marriage Act, XXV of 1955, for a decree for judicial separation from his wife (respondent) on the ground of desertion by her for the previous six years. The broad facts are simple, and undisputed for the most part, they are as follows :

2. The parties were married in March 1934, and till about 1950, that is for a period of nearly 16 years, they appear to have led an amicable and happy married life. They had two daughters and a son born of this marriage. Subsequently, differences undoubtedly arose between them and the wife instituted a suit, O. S. No. 260 of 1956, for a decree for separate maintenance on the ground that the husband (appellant) brought into the house a girl Pankajammal whom he kept openly as his mistress, and also that he physically illtreated the wife and drove her out of the house.

The wife claimed maintenance at the rate of Rs. 30 per mensem together with a sum for clothing and arrears of maintenance for a period of two years prior to her suit, with a charge on the properties. It was after this suit became ready for trial that the petitioner (appellant) filed, O. P. No. 97 of 1956 in the District Court under Sec. 10(1)(a) of Act, XXV of 1955. Ultimately, both the proceedings were tried together by the learned Subordinate Judge of Tiruchirapalli, as indisputably that was the course most convenient to parties, and most consistent with the interests of justice.

3. It is not necessary to go into the minute particulars of the oral and documentary evidence. The learned Subordinate Judge has dealt with all the facts of the record in a lengthy order, in which he has analysed the oral evidence and the probabilities. In paragraph 9 of his judgment the learned Subordinate Judge refers to the fact that the petitioner (appellant) charged the wife with immoral conduct and adultery. But later he was compelled, to concede that these allegations were unfounded, and he was unable to bring forward a single specific averment relating to the alleged misconduct of the wife.

On the contrary, the wife was able to prove that the petitioner did bring into the house one Pankajammal, whom he openly kept as his concubine or mistress, who belonged to a different community from that of the parties. The wife was also able to prove that she was cruelly treated, beaten and driven out of the house. I need not point out that even making such unfounded allegations of adultery against a chaste wife would certainly amount to cruelty under the law. The learned Judge, therefore, held that the respondent (wife) was entitled to separate maintenance in her suit, and he gave her a decree therefore, with the particulars of which we are not concerned. In the petition of the appellant, the learned Judge held that the appellant was not entitled to any relief under Sec. 10(1)(a) of the Act, since the alleged desertion was not proved.

4. When this appeal was first argued before me, I found that the respondent (wife) was unrepresented in the appeal. Later, at the instance of the court, Sri Amjad Nainar has appeared as amicus curiae for the wife, and I have had the benefit of full arguments on behalf of both sides, upon the facts and probabilities of the record. I may briefly state that, as far as the findings of fact are concerned, I see no justification to differ from the appreciation of the evidence, by the learned Subordinate Judge.

We may therefore take it as established that it was the husband (appellant) who was guilty of cruelty and of openly keeping a mistress in the house, so that the wife was compelled to leave the house. This entitled her to the decree for separate maintenance granted in the suit, the merits of which are not really now before me. Since the wife did not desert the husband without reasonable cause for a continuous period of not less than two years before his petition, the husband was not entitled to judicial separation under S